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Hazardous Waste Enforcement: U.S. Environmental Protection Agency and Michigan Hospital Enter into Consent Agreement

Written by Walter Wright, Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C.

The United States Environmental Protection Agency (“EPA”) and Spectrum Health Hospitals (“Spectrum”) entered into an October 29th Consent Agreement and Final Order (“CAFO”) addressing alleged violations of the Resource Conservation and Recovery Act (“RCRA”) hazardous waste regulations. See Docket No. RCRA-05-2021-0003.

The CAFO provides that Spectrum operates a facility (“Facility”) in Grand Rapids, Michigan.

The Facility is stated to include actions or processes causing the production of hazardous waste as that term is defined under 40 C.F.R. § 260.10. Therefore, Spectrum is stated to be a generator of hazardous waste under the relevant regulations.

The Facility is stated to have during the 2019 calendar year generated 1,000 kilograms or greater of hazardous waste, or generated 1 kilogram or greater of acute hazardous waste in some calendar months (qualifying it as a large quantity generator) which it shipped off-site to a treatment storage or disposal facility.

EPA is stated to have provided Spectrum the identification of potential RCRA violations. The Facility is stated to have engaged with EPA to expeditiously assess the matter and agrees to the entry of the CAFO.

The alleged violations include:

  • Notification of Change of Hazardous Waste Activity (failure to submit for the 2019 calendar year a notification of the change of the Facility’s type of hazardous waste activity to Large Quantity Generator status)
  • Annual Reporting (failure to prepare and submit a biennial report by March 1, 2020)

The CAFO requires that Spectrum file with the Michigan environmental agency an updated Notification of RCRA Subtitle C Activities and a Biennial Hazardous Waste Report covering the 2019 calendar year.

Spectrum neither admits nor denies the factual allegations in the CAFO.

A civil penalty of $11,471 is assessed.

A copy of the CAFO can be downloaded here.


About the Author

Walter Wright has more than 30 years of experience in environmental, energy (petroleum marketing), and water law.  His expertise includes counseling clients on issues involving environmental permits, compliance strategies, enforcement defense, property redevelopment issues, environmental impact statements, and procurement/management of water rights. He routinely advises developers, lenders, petroleum marketers, and others about effective strategies for structuring real estate and corporate transactions to address environmental financial risks.

U.S. EPA and State of Nebraska reach settlement over alleged environmental violations at hazardous waste incinerator

The United States Environmental Protection Agency (U.S. EPA) and the State of Nebraska recently announced a settlement with the owners of the Kimball, Nebraska hazardous waste incinerator over  alleged violations of the Resource Conservation and Recovery Act (RCRA), Clean Air Act, and Emergency Planning and Community Right-to-Know Act.

The alleged violations included failure to manage and contain hazardous wastes; failure to comply with air emission limits; failure to comply with chemical accident prevention safety requirements; and failure to timely report use of certain toxic chemicals. Under the terms of the settlement, the owner agreed to pay a $790,000 civil penalty and will improve facility practices to protect facility workers and the surrounding community from potentially harmful releases of pollutants.

The Kimball hazardous waste incinerator serves the entire United States as a storage and treatment facility for a variety of industrial waste utilizing a 45,000 ton-per-year fluidized bed incinerator. The state-of-the-art thermal oxidation unit (TOU) is capable of maximum destruction efficiencies of hazardous waste and is able to handle an extremely wide variety of feeds. Delisted ash from the TOU will be placed in an on-site monofill built to RCRA Subtitle C standards.

According to the U.S. Environmental Protection Agency (EPA) and the Nebraska Department of Environment and Energy (NDEE), the Kimball facility has been subject to previous enforcement actions, including penalty assessments, in 1997, 2004 and 2010.

According to EPA and NDEE, improper management of wastes incinerated at the facility led to unsafe conditions that could result in employee injury and/or releases of harmful air pollution outside the facility. For example, the agencies allege that the owner failed to address multiple fire incidents resulting from the company’s mixing of incompatible wastes.

Terms of the settlement include upgraded plans to classify, manage and contain the wastes incinerated at the facility; an updated fire prevention and response program; and the performance of an environmental audit at the facility to identify and address any continuing noncompliance.

U.S. EPA Challenge: $50,000 Reward for Innovative Ways to Destroy PFAS

The U.S. EPA is partnering with the U.S. Department of Defense’s Strategic Environmental Research and Development Program (SERDP) and Environmental Security Technology Certification Program (ESTCP); the Environmental Council of States (ECOS) and the Environmental Research Institute of the States (ERIS); Michigan Department of Environment, Great Lakes & Energy; and Colorado Department of Public Health & Environment, to co-sponsor a technical challenge regarding the destruction of per- and polyfluoroalkyl substances (PFAS). The challenge asks solvers to submit detailed plans for a non-thermal way of destroying PFAS in concentrated film forming foam (AFFF), while creating the least amount of potentially harmful byproducts.

Currently, the U.S. EPA is investigating all methods of destroying PFAS. Incineration has been used to treat PFAS-contaminated media, and EPA scientists are collaborating with the private sector to evaluate the effectiveness of thermal treatment technologies to completely destroy PFAS. The goal of this challenge is to discover new non-thermal technologies and approaches that can remove at least 99 percent of PFAS in unused AFFF, without creating any harmful byproducts. Although PFAS compounds can be found in various waste streams, the challenge is focused on unused AFFF.

The challenge is intended to encourage the development of new approaches, technologies, or technology combinations that meet the following objectives:

  • Must be applicable for use on unspent aqueous film forming foam (AFFF) from unused AFFF concentrates containing 3 percent and/or 6 percent PFAS;
  • Must destroy at least 99 percent of the PFAS in the unused AFFF concentrates, including PFAS byproducts that may form by volatilization, particulates, and leaching from effluents;
  • Must demonstrate scalability and cost effectiveness for a defined quantity over thermal methods used to treat the same waste stream (AFFF).

Additional features that are desired (but not required) of submitted PFAS destruction technologies/ approaches:

  • Demonstrates compatibility with current production and destruction practices;
  • Avoids creating other toxic residues after destruction of PFAS, including hazardous chemicals identified in EPA’s ToxCast database;
  • Is currently accessible in the marketplace or near-market ready.

The ideal technology would:

  • Perform onsite destruction of at least 99 percent of PFAS in AFFF formulations;
  • Be currently on the market or near market;
  • Destroy parent PFAS compounds;
  • Destroy short-chain PFAS byproducts (e.g., CF4) if volatilization occurs;
  • Destroy or neutralize any unwanted byproducts (e.g., HF) that would need to be incinerated or landfilled in a hazardous waste facility;
  • Be more cost effective than thermal destruction;
  • Have good environmental and public health outcomes (e.g., does not transfer PFAS or any unwanted byproducts into other media);
    Be potentially applicable to other PFAS waste streams (e.g., biosolids, contaminated ground water, etc).

Solvers are not required to give up any of their intellectual property (“IP”) rights to the Seeker to be eligible to receive an award.

Eligibility

  • Winning Solvers must certify they do not have identical or essentially equivalent work currently funded by a Federal agency.
  • Federal employees acting within the scope of their employment should consult his or her ethics official before participating in the Challenge.
  • Solvers are not required to give up any of their intellectual property (“IP”) rights to the Seeker to be eligible to receive an award.
  • Submissions to this Challenge must be received by 11:59 PM (US Eastern Time) on November 23, 2020.
  • Late submissions will not be considered.

How to Enter

​To submit a solution to the Innovative Ways to Destroy PFAS Challenge please visit the InnoCentive webpage Uand follow the instructions.

U.S. EPA to Terminate Temporary COVID-19 Enforcement Policy

Written by Michael Traynham, Nexsen Pruet, PLLC

On June 29, 2020, the United States Environmental Protection Agency (“EPA”) released an addendum to its previously announced COVID-19 Enforcement Policy, effectively setting a termination date of August 31, 2020, for the temporary enforcement discretion described in its previous memorandum. The U.S. EPA originally released a memorandum on March 26, 2020, addressing the impacts of the COVID-19 pandemic on the agency’s Enforcement and Compliance Assistance Program. The temporary policy relaxed regulatory consequences for most forms of noncompliance caused by COVID-19 related workforce shortages, social distancing requirements, and other limitations.

The temporary enforcement policy has been widely criticized by environmental interest groups for allegedly granting carte blanche to pollute. A number of State attorneys general have challenged the policy as well, asserting that it exceeds EPA’s authority.

The termination addendum reserves EPA’s right to terminate the enforcement discretion policy earlier than August 31, though only by providing a minimum advance notice of seven days. The termination of the temporary policy will require regulated entities to return to timely reporting for all permit and regulation based obligations, though under the terms of the temporary policy “catch-up” reports will not be required for monitoring report requirement that apply to intervals of less than three months. Annual or bi-annual reporting obligations may be required, even if the monitoring is conducted later than typically required. The termination also ends the blanket discretion to eschew civil penalties for noncompliance related to COVID-19, although the addendum states that EPA retains the ability to exercise enforcement discretion on a case-by-case basis.

With confirmed cases of COVID-19 on the rise nationwide, and renewed restrictions being implemented in several states, regulated entities should give additional attention to their compliance plans and contingencies prior to August 31. If workforce shortages or other COVID-19 related legal restrictions make compliance obligations impossible or impractical after the termination of the temporary policy, the documentation framework set out in EPA’s March 26 memo remains good practice:

  1. Act responsibly under the circumstances in order to minimize the effects and duration of any noncompliance caused by COVID-19;
  2. Identify the specific nature and dates of the noncompliance;
  3. Identify how COVID-19 was the cause of the noncompliance, and the decisions and actions taken in response, including best efforts to comply and steps taken to come into compliance at the earliest opportunity;
  4. Return to compliance as soon as possible; and
  5. Document the information, action, or condition specified in a. through d.

While there are no assurances of civil penalty avoidance after August 31, strong documentation of good faith efforts toward compliance will go a long way toward resolving issues as they arise.


About the Author

Michael Traynham is an experienced environmental law attorney based in the firm’s Columbia, South Carolina office. As a member of the Real Estate & Environmental practice group, he brings his trial experience and comprehensive knowledge on a wide variety of South Carolina environmental issues when advising his clients.

U.S. EHS Compliance and COVID-19: What EHS Executives Can Do Now (and as soon as the Dust Settles)

Written by Christopher Clare and Patrick Larkin, Clark Hill PLC

On April 2, 2020, the US EPA issued a letter to each member of Congress that makes our point that published Enforcement Discretion policies may require case-specific demonstrations of Force Majeure.

Greater certainty may be obtained under self-disclosure and penalty immunity policies.

On April 10, the US EPA also issued “Interim Guidance on Site Field Work Decisions Due to Impacts of COVID-19.” As in its March 26th Enforcement Discretion Guidance, EPA affirms that it will require actual evidence of “impracticability” to excuse or mitigate non-compliance with remedial activity obligations.

___________________

Act now – assume there will be gaps in compliance programs.

The COVID-19 pandemic will have (hopefully) once-in-a-lifetime impacts on all of us, including unavoidable and widespread non-compliance with regulatory obligations and deadlines. To help manage enforcement liability, the U.S. EPA and numerous state counterparts have issued new enforcement discretion guidance, and are emphasizing existing penalty relief mechanisms. To qualify for discretionary penalty mitigation, Environmental Health and Safety executives should actively participate in their companies’ resource-triage decisions, and take steps now to ensure self-audit penalty immunity. These steps include:

Take short term actions that, above all, prioritize the physical security of human health and environmental receptors (HH/E).

  • As Hurricane Alley companies (and their EHS managers) have learned, in weeks and months after the disaster, governments will use 20/20 hindsight and expect environmentally significant operations to have prioritized human health and the environment.
  • Where actual harm to HH/E occurs and arguably arises from a resource allocation decision, State and federal agencies may have limited discretion and less inclination to mitigate maximum statutory penalties (and equally existential economic consequences).
  • When making decisions on how to prioritize limited company resources, EHS managers may present their claim to company resources in terms of preserving reputations and avoiding criminal sanctions and/or catastrophic civil liability.

Take the required steps to qualify for state and federal enforcement discretion guidance.

  • These guidance documents recognize that the numerous executive orders restricting travel and calling on citizens to shelter in place will make compliance and agency interactions difficult and tenuous. These documents have thus far focused on: (1) force majeure recognition and self-documentation; and (2) online “registration” of force majeure events.
  • Many permits, consent orders, and remediation agreements contain so-called “Act of God” or force majeure provisions that arguably excuse or defer actual or timely performance of these legal obligations.
  • Establishing the criteria for force majeure typically requires a nuanced demonstration of the elements of eligibility, including:
    • Near-immediate notice of intent to assert force majeure;
    • Demonstration that nonperformance was unavoidable, cause unforeseeable; and
    • Extremely rigorous, arguably unreasonable, levels of mitigation efforts.

Key provisions to look for in enforcement discretion guidance documents include:

  • Specific eligibility criteria for force majeure / enforcement discretion.
  • Waivers/penalty mitigation likely will be subject to a case-by-case analysis.
    • Companies will need to “make their case” for relief.
    • Documentation of direct causal connection between COVID-19 pandemic and impacts on the company will likely be necessary.
    • It is unclear if rigorous force majeure demonstrations will be required. (e.g. non-foreseeability) by most agencies.
  • Violations which could have “practicably” been prevented are likely ineligible.
  • Intentional criminal acts will be ineligible (“knowing but unavoidable” are likely eligible).
  • Discretion policies will likely not apply to non-compliance with cleanup/enforcement orders.
    • Orders are quasi-contractual and often include force majeure terms.
    • For rule-based obligations, the agency may need additional authority to use force majeure defenses to waive enforcement.
  • Most importantly, these exclusions emphasize that EPA guidance provides only a first step:
    • Guidance is an invitation to apply force majeure concepts to rule obligations.
    • No blanket immunity is provided.
  • EPA’s enforcement discretion guidance can be found here. Examples of state agencies with similar guidance include TexasPennsylvaniaMichigan, and California.
    • State enforcement discretion policies may provide broader waivers of state-specific regulatory requirements and state enforcement of federally delegated programs.
    • When requesting relief from a solely-federal requirement (e.g., EPCRA Tier II, SPCC or Toxic Release Inventory reporting), the EPA’s guidance should be used.
    • Several states’ guidance emphasizes self-reporting and appears to set a lower bar to secure enforcement discretion, e.g., Texas, linked above, and Ohio.

Do not assume these defenses will apply, or be applied consistently, in the future.

  • Many eligibility decisions will not be made until 2021 or later and may be made by agency management from a new Administration or revised post-pandemic roster.
  • It may be prudent to view agency enforcement discretion guidance as offers to apply force majeure principles if/when you can show it is appropriate.
  • Optimistically, a company may consider the guidance as an acknowledgment that one or more of the force majeure elements are generally satisfied.
  • Guidance seems to imply that “un-foreseeability” elements of force majeure are satisfied.
  • The (next) most difficult prerequisite to satisfy is likely to be the adequacy of mitigation efforts.

Use Self-Audit/Self-disclosure Policies to seek full immunity or minimized enforcement responses. 

  • A company’s chance to enforce discretion is greatly enhanced by invoking agency authority to grant penalty immunity: self-audit and self-disclosure programs.
  • Prerequisites and protocols for audit-based immunity vary across agencies, but can generally be optimized by planning and for some, pre-negotiation of terms with the agency.
  • Negotiating a pre-planned audit/disclosure can provide flexibility in the satisfaction of penalty immunity deadlines and criteria. Moreover, the EPA and state agencies are likely to show audit agreement flexibility while the pandemic continues.
  • More information concerning EPA’s self-audit program can be found here.
  • Many states have similar audit/disclosure programs, but eligibility nuances and “trap-doors” require careful attention to detail. See TexasPennsylvaniaCalifornia, and Michigan.

About the Authors

Christopher B. Clare is a Senior Attorney in the Environment, Energy & Natural Resources group in Clark Hill’s Washington, DC office. Chris concentrates his practice on environmental litigation, regulatory compliance matters and business transactions involving environmental issues.

 

Pat Larkin practices exclusively in environmental law, including regulatory compliance, litigation, administrative law, and  environmental counseling in business transactions. Pat regularly represents industrial, transportation, real estate and retail clients in air, water and waste permitting, compliance counseling and audits, voluntary site cleanups, government enforcement actions, and in agency rulemaking and associated stakeholder and guidance writing work groups.

To Sample or Not: U.S. EPA Issues Interim Guidance on Site Field Work During the COVID-19 Pandemic

Written by Amy L. Edwards, Bonni F. Kaufman, and Meaghan A. Colligan,  and  Holland & Knight LLP

On April 10, 2020, the U.S. Environmental Protection Agency (EPA) Office of Land and Emergency Management (OLEM) and Office of Enforcement and Compliance Assurance (OECA) issued Interim Guidance on Site Field Work Decisions Due to Impacts of the COVID-19 Pandemic to all EPA Regional Administrators. The Interim Guidance outlines the factors that EPA Regional Offices should consider on a case-by-case basis to evaluate if cleanup actions should continue as is, be reduced or paused, as well as affirmative steps that EPA Regions must take depending on what decision they make. The Interim Guidance is applicable to Superfund cleanups, Resource Conservation and Recovery Act (RCRA) corrective actions, Toxic Substances Control Act (TSCA) PCB cleanups, cleanups under the Oil Pollution Act, the Underground Storage Tank (UST) program and EPA emergency responses to releases or substantial threats of releases (Response Actions) when EPA is the lead agency. The Response Actions may be performed by EPA, states, tribes other agencies of the federal government and potentially responsible parties where EPA is the lead agency.

EPA was clear that Regional Office decisions and follow-up steps must be made in accordance with EPA’s priorities to 1) protect the health, safety and welfare of the public, EPA staff and third-party environmental professionals, and 2) maintain EPA’s ability to respond to environmental emergencies and protect the environment (EPA’s Priorities). EPA indicated that adherence with federal, state, tribal or local health declarations and restrictions (Health Declarations), when possible, is integral to EPA’s Priorities. EPA was clear that no one factor outlined in the Interim Guidance should be considered in a manner that would override protection against unnecessary potential exposure to COVID-19. Furthermore, EPA indicated that Regional Office decisions to provide extensions or pause work obligations will not supersede or amend enforcement instruments.

When evaluating whether or not to continue, modify or pause a Response Action, EPA made clear that Regional Offices should closely consider whether or not the Response Action is addressing an imminent public health issue, such as access to clean drinking water or vapor exposure concerns, emergency spills, catastrophic events, disposals of certain wastes that may cause an imminent safety issue and in-progress decommissioning of former nuclear facilities and landfills. Applying EPA’s clear guidance that EPA’s Priorities must be at the forefront of the Regional Offices’ decisions, Holland & Knight does not believe the Regional Offices will permit any schedule alterations in these situations, so long as appropriate lodging and personal protective equipment is available for EPA workers or third-party contractors. In contrast, EPA may be more willing to approve schedule modifications for investigations that are part of long-term remedial actions that would not be completed in six months under ordinary circumstances, and remedial actions that do not address an immediate public health concern, i.e., the remedial action was already not scheduled to begin for at least one or two years regardless of any delays caused by the pandemic.

EPA indicated that Response Actions will not simply be abandoned without any controls. Rather, if Regional Offices decide that an action should be paused, Regions should continue to monitor the site and plan to resume field work as soon as it is safe to do so. If a Response Action will continue, Regional Offices must review and modify the health and safety plan (HASP) to ensure that it accounts for CDC’s COVID-19 guidelines and other Health Declarations.

EPA expects work that can be performed remotely to continue, such as completing investigation and cleanup reports, work plans, negotiations between parties, issuing decision documents, progress reports and maintaining compliance with financial assurance obligations.

Parties that believe a COVID-19 restriction will impact their obligations to perform any element of a Response Action are directed to consult the applicable enforcement instrument to review force majeure provisions and any provisions that outline the process for requesting schedule adjustments. Scheduling adjustments will be made on a case-by-case basis in line with EPA’s Priorities and the factors outlined in the Interim Guidance.

EPA indicated that it will update the Interim Guidance as the current situation evolves, as necessary.

Key Elements of the Interim Guidance

General Guidance for Response Field Work Decisions

EPA made clear that Regional Offices would continue to respond to releases or threats of substantial releases to the environment but that Regions should make every effort to ensure worker safety and compliance with travel restrictions, Health Declarations and access to personal protective equipment and lodging.

Under the Interim Guidance, Regional Offices are to perform an evaluation before deciding to continue, modify or pause Response Actions and pre-construction, construction and post-construction activities. In jurisdictions where Health Declarations have been issued, Regions are to evaluate the status of ongoing response work and the possible impact of the COVID-19 pandemic on sites, surrounding communities, EPA personnel and response/cleanup partners. In jurisdictions where Health Declarations have not been issued, Regions should weigh additional factors, including the safety and availability of work crews and EPA, state and tribal staff; the critical nature of the work; logistical challenges such as travel and lodging, and other factors particular to a site.

EPA indicated that Response Actions will not simply be abandoned without any controls. Rather, if Regional Offices decide that an action should be paused, Regional Offices should continue to monitor the site and plan to resume field work as soon as it is safe to do so. If a Response Action will continue, Regional Offices must review and modify the HASP to ensure that it accounts for CDC’s COVID-19 guidelines and other Health Declarations.

During the COVID-19 pandemic, EPA encourages parties and lead agencies to regularly communicate with EPA project managers about the status of the Response Actions and any anticipated challenges and mitigation measures. If COVID-19 restrictions impact a party’s ability to perform any Response Actions, that party should review the enforcement instrument, i.e., consent order, settlement agreement, etc., for the applicable provisions allowing for schedule adjustments or invocation of force majeure provisions. EPA project managers will promptly issue decisions about schedule adjustments on a case-by-case basis.

Factors to Consider for Site Field Work Decisions

EPA provided a list of situations in which Regions have decided and may continue to decide to modify or suspend Response Actions:

  • State, tribal or local health officials have requested suspensions.
  • Any site workers have tested positive for or exhibited symptoms of COVID-19.
  • Any sites where there may be close interaction with high-risk groups or those under quarantine.
  • Sites where contractor field personnel are not able to work due to a jurisdiction’s travel restriction or Health Declarations.
  • Other sites where social distancing is not possible.

EPA provides a list of factors that regional management should consider with respect to site-specific work decisions, including generally:

  • whether failure to continue the Response Action would likely pose an imminent and substantial endangerment to human health or the environment, such as emergency spill responses, catastrophic events, sites that impact drinking water or result in on-site exposures or vapor intrusion, disposals of certain wastes that may cause an imminent safety issue, and in-progress decommissioning of former nuclear facilities and landfills, and whether it is practical to continue the Response Action
  • whether maintaining Response Actions would lead to a reduction in human health risk/exposure in the next six months, such as vapor intrusion investigations, residential site work with current exposures to residents, and drinking water-related work
  • whether the work would not provide near-term reduction in human health risk, such as periodic monitoring, routine sampling activities and field sampling for remedial or facility investigations. In these instances, EPA is more likely to consider the possibility of a delay, suspension, or rescheduling of work and with updated HASPs as appropriate.

Effects on Non-Field Site Work

EPA expects work that can be performed remotely to continue, such as completing investigation and cleanup reports, work plans, negotiations between parties, issuing decision documents, progress reports and maintaining compliance with financial assurance obligations. EPA did recognize that laboratories and other supporting operations may be impacted by the COVID-19 pandemic and directed parties to follow procedures in those situations outlined in the applicable enforcement instrument.

Next Steps When Pausing Site Work

If a decision is made to pause work, EPA expects Regional Offices to continue to monitor site conditions, plan to resume field work when appropriate and utilize EPA’s internal Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) Interim Guidance on Public Engagement During COVID-19.

Conclusion

EPA has made it clear to the Regional Offices that they may approve a modification or pause of certain Response Actions, but not if the Response Action is in the process of addressing or will address an imminent or substantial threat to public health and the environment. EPA does, however, require the Regional Offices to balance any decisions with a close review of Health Declarations and exposure or any potential exposure to COVID-19 to the public, EPA workers, and contractors. Based on recent experience, EPA will not extend deadlines for deliverables such as work plans, reports or settlement negotiations based on COVID-19 that can be prepared remotely.

DISCLAIMER: Please note that the situation surrounding COVID-19 is evolving and that the subject matter discussed in these publications may change on a daily basis. Please contact your responsible Holland & Knight lawyer or the authors of this alert for timely advice.

Information contained in this article is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem. Moreover, the laws of each jurisdiction are different and are constantly changing. If you have specific questions regarding a particular fact situation, we urge you to consult competent legal counsel.


About the Authors

Amy L. Edwards is the co-chair of the Holland & Knight LLP’s National Environmental Team. She is a partner in the firm’s Public Policy & Regulation Group, which has been ranked among the top law and lobbying firms in Washington, D.C., by numerous publications. Ms. Edwards has been recognized as a leading environmental lawyer for several years by Chambers USA, Super Lawyers and Best Lawyers.

Bonni F. Kaufman is a partner in the Public Policy & Regulation Group of Holland & Knight, where she focuses her practice on environmental law. Ms. Kaufman represents clients in a wide variety of matters relating to environmental laws, focusing on regulatory enforcement and compliance, product regulation, litigation and environmental aspects of corporate and real estate transactions.

Meaghan A. Colligan is a Washington, D.C., environmental attorney and member of Holland & Knight’s Public Policy & Regulation Group. She focuses her practice in the areas of environmental, land use, energy and municipal law.

Guide to Community Actions that drive Brownfields Development

The United States Environmental Protection Agency (U.S. EPA) recently developed a Guide to help communities with brownfields to
more successfully address community revitalization and brownfields-related challenges.  The guide outlines concrete actions communities can take to address these challenges.

Through the three case studies described in the Guide, it is shown that attracting public or private investment for the reuse of brownfield properties can bring economic and social benefits to communities, in addition to improving environmental conditions.

The Guide provides details of the five steps for successful brownfield redevelopment:

  1. Lead with stakeholder involvement that empowers the local community to become redevelopment champions.
  2. Create a site reuse vision that is exciting and realistic.
  3. Remove barriers to brownfield redevelopment (i.e., expediting zoning and permitting approvals).
  4. Engage developers and end-users.
  5. Complete site preparations and close the deal.

The Guide also discusses opportunities for obtaining brownfield grants and technical assistance.  The U.S. EPA provides grants and technical assistance to local, state and tribal governments and nonprofit organizations. As of February 1, 2019, these federal government investments in brownfield remediation projects have leveraged $27.527 billion in cleanup and redevelopment funding from public and private sources and resulted in the creation of over 144,800 jobs.

Perfluorinated Compounds: No Longer an Emerging Contaminant

Written by Sarah Peterman Bell and John Ugai, Farella Braun + Martel LLP

Lawsuits present major liability risks to PFAS manufacturers and industries that historically used PFAS in their operations.

Per- and polyfluoroalkyl chemicals (PFAS) are synthetic, human-made compounds that were manufactured in the United States beginning in the 1940s and have been used in a wide range of industries. Because they repel oil and water, PFAS chemicals were used in numerous consumer products, including nonstick pans, outdoor gear, raincoats, and food packaging.

PFAS were also widely used in industrial processes, including in operations involving chrome plating, electronics manufacturing, and in firefighting foams. Indeed, the use of firefighting foam at airports, military bases, and firefighting training sites is a major source of PFAS in groundwater in such areas.

PFAS were used in fire-fighting foam

PFAS chemicals tend to persist in the environment. Two of the most prevalent PFAS, perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS), have been detected in groundwater in many areas throughout the United States, particularly where these chemicals were manufactured, used in manufacturing or industrial operations, or in areas associated with firefighting work and training.

Federal Regulation of PFAS

For now, the federal Superfund law – the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) – does not identify PFOA, PFOS, or any other PFAS as “hazardous substances.” Nor has the federal government issued maximum contaminant levels (MCLs) or other legally enforceable limits for PFAS in drinking water. Nonetheless, the U.S. Environmental Protection Agency (EPA) has added PFAS sites to its Superfund list. And some states have developed enforceable cleanup standards or issued MCLs for certain PFAS in drinking water.

EPA is apparently moving forward with regulating PFAS. Last month, EPA released an update to its 2019 PFAS Action Plan. As explained in 2019, EPA is evaluating regulation of PFAS, including designating certain compounds as “hazardous substances” under CERCLA, setting enforceable MCLs for drinking water, and/or developing regulatory standards for PFOA or PFOS at cleanup sites. EPA is also considering release reporting for PFAS.

In its February 2020 update, EPA reported that it has developed interim groundwater cleanup recommendations for CERCLA cleanup sites and Resource Conservation and Recovery Act (“RCRA”) corrective action sites. EPA has also begun the process to regulate PFOA and PFOS in drinking water and to add PFAS to the Toxics Release Inventory.

For industry, the regulations contemplated by the PFAS Action Plan would have significant implications. For example, adding PFAS chemicals to the CERCLA hazardous substances list could dramatically impact CERCLA cleanups by expanding the number of cleanup sites, increasing the number of responsible parties, and increasing cleanup costs – not to mention the possibility that closed sites might be reopened to address PFAS.

PFAS Litigation: States & Private Parties Step In

As of now, a growing number of states, nonprofits, and individuals are suing regarding PFAS contamination and exposure. These suits present major liability risks to PFAS manufacturers and industries that historically used PFAS in their operations. In one of the earliest PFAS lawsuits, Minnesota pursued 3M for liability associated with PFAS in groundwater near a 3M industrial facility. That case settled in 2018 for $850 million.

In January, Michigan sued 3M, DuPont, and 15 other chemical manufacturers, alleging that they concealed the dangers of PFASs, withheld scientific evidence, and contaminated the environment. New Mexico, Vermont, and Washington have also filed PFAS-related litigation, while New Hampshire, New Jersey, and New York have filed suits against firefighting foam producers and distributors as well as PFAS chemical manufacturers. And just last month, a group representing more than 31,000 rural utility systems sued more than 20 companies, including 3M and DuPont, to recover the costs to clean up PFAS in groundwater resulting from the use of firefighting foam products.

Nonprofits have also sought to address PFAS contamination through litigation. In February, Earthjustice filed a lawsuit on behalf of nonprofits representing communities in Ohio, Texas, Illinois, and California, alleging deficiencies in the U.S. Department of Defense’s (“DOD”) environmental review of plans to burn millions of gallons of firefighting foam (allegedly an expansion of ongoing efforts to incinerate unused stockpiles of firefighting foam).

Personal injury cases also present a significant potential source of liability. For instance, residents of Parkersburg, West Virginia, sued DuPont in 2001, for injuries from PFOA contamination in the waterways surrounding DuPont’s manufacturing facility. In 2017, DuPont and Chemours Co. settled roughly 3,550 of these pending cases for over $670 million.

Industry should be aware that while EPA’s progress towards regulating PFAS has been slow, states, nonprofit groups, and individual plaintiffs have been taking action regarding these “forever chemicals.” Litigation regarding PFAS is increasing, states are stepping into the regulatory void and setting MCLs and cleanup standards, and EPA has begun adding PFAS sites to the Superfund list.


About the Authors

Sarah Bell is a partner at Farella Braun + Martel.  She focuses her practice on environmental and natural resources litigation, administrative proceedings, and counseling, and advises clients in a broad range of disputes, including environmental enforcement actions, cost recovery, citizen suits, water quality, complex toxic tort, and product liability matters.

John Ugai is an associate in Farella Braun + Martel’s Environmental Law Department.

U.S. EPA Issues the Latest Revision to the Risk Management Program (RMP) Chemical Release Rules

Written by Pillsbury Winthrop Shaw Pittman LLP

The United States Environmental Protection Agency’s (U.S. EPA’s) revised Risk Management Rules, designed to reduce the risk of the accidental release of hazardous chemicals, have been published in the Federal Register.  The citation to this action is 84 FR 69834 (December 19, 2019).  The rule is effective on December 19, 2019, but also provides for some staggered compliance dates for emergency response exercises and updating certain risk management plan provisions.  These revisions were triggered by EPA’s review of several petitions for reconsideration of EPA’s January 13, 2017 amendments to the rules set forth in 1996 at 40 CFR Part 68, which implemented the chemical accident preventions provisions required by Section 112 (r)  of the Clean Air Act.  Many of the 2017 requirements have been rescinded by this action.

On November 21, 2019, the U.S. EPA released a pre-publication copy of its Reconsideration of the revised Risk Management Program (RMP) Rules. In an accompanying statement, the agency noted that it has taken steps to “modify and improve” the existing rule to remove burdensome, costly and unnecessary requirements while maintaining appropriate protection (against accidental chemical releases) and ensuring responders have access to all of the necessary safety information. This action was taken in response to U.S. EPA’s January 13, 2017 revisions that significantly expanded the chemical release prevention provisions the existing RMP rules in the wake of the disastrous chemical plant explosion in West, Texas. The Reconsideration will take effect upon its publication in the Federal Register.

Background
As recounted by the D. C. Circuit in its August 2018 decision in the case of Air Alliance Houston, et al. v. EPA, in 1990, the Congress amended the Clean Air Act to force the regulation of hazardous air pollutants (see 42 USC Section 7412). An initial list of these hazardous air pollutants was also published, at Section 7412 (b). Section 112(r) (codified at 42 USC Section 7412 (r)), authorized the U.S. EPA to develop a regulatory program to prevent or minimize the consequences of a release of a listed chemical from a covered stationary source. The U.S. EPA was directed to propose and promulgate release prevention, detection, and correction requirements applicable to stationary sources (such as plants) that store or manage these regulated substances in amounts determined to be above regulated threshold quantities. The U.S. EPA promulgated these rules in 1996 (see 61 FR 31668). The rules, located at 40 CFR Part 68, contain several separate subparts devoted to hazard assessments, prevention programs, emergency response, accidental release prevention, the development and registration of a Risk Management Plan, and making certain information regarding the release publicly available.  The U.S. EPA notes that over 12.000 RMP plans have been filed with the agency.

In response to the catastrophe in at the West Plant, the U.S. EPA issued substantial amendments to these rules, covering accident prevention (expanding post-accident investigations, more rigorous safety audits, and enhanced safety training), revised emergency response requirements, and enhanced public information disclosure requirements. (See 82 FR 4594 (January 13, 2017).) However, the new administration at the U.S. EPA, following the submission of several petitions for reconsideration of these revised rules, issued a “Delay Rule” on June 14, 2017, which would have extended the effective date of the January 2107 rules until February 19, 2019. On August 17, 2018, the Delay Rule was rejected and vacated by the D.C. Circuit in the aforementioned Air Alliance case (see 906 F. 3d 1049 (DC Circuit 2018)), which had the effect of making the hotly contested January 2017 RMP revisions immediately effective.

Reconsidering the January 2017 Revision
On May 30, 2018, the U.S. EPA issued a notice of proposed rulemaking (see 83 FR 24850) to reconsider the reinstated RMP revisions and amendments, and the agency has now decided the issues raised in this rulemaking. Basically, it appears that the U.S. EPA is returning the rules to their pre-January 2017 stage and format. Over the years, these rules have been amended with some frequency, and the agency argues that these actions have all been discretionary once it finalized the basic 1996 version. Accordingly, it is acting well within its discretion to revise and rescind large portions of the 2017 amendments. Obviously, this is a complex regulatory program, but here are some highlights. The 2017 revisions to the Risk Management Program have been rescinded regarding safer technologies and alternatives analysis, third-party audits, incident investigations, and information availability. The U.S. EPA is also modifying regulations relating to local emergency coordination, emergency response exercises, compliance dates and public meetings. In addition, “this action rescinds almost all the requirements added in 2017 to accident prevention program provisions,” including again third-party audits. No longer will incident investigations be required to include a “root cause analysis,” or to consider a “near miss” that never resulted in an accidental release. The emergency response amendments are modified to allow facilities to share only that technical information necessary to implement the local emergency response plan. The agency and many commenters were concerned that the earlier rule risked the exposure of national security information. However, some of the 2107 changes to required public meetings have been retained. Finally, the U.S. EPA will establish new compliance dates to reflect these actions.

In the preamble, the U.S. EPA recognizes that the spate of recent chemical plant incidents has created concerns with these topsy-turvy regulatory proceedings. The agency points out that in several well publicized cases, these rules would not even have been applicable because the chemical release at issue was not a substance listed as a hazardous air pollutant in the statute or the implementing regulation, or in threshold quantities. Also, in the West fire and explosion, the Bureau of Alcohol, Tobacco Firearms and Explosives (ATF) believes that the cause was not an accident, but a deliberate act. Finally, the U.S. EPA argues that it is unfair to burden all covered plants with a complicated and costly regulatory program when it is clear to the agency that only a handful of chemical plants are the source of the great majority of complaints.

What’s Next?
With revised Risk Management Rules now published in the Federal Register, these actions will likely be subject to another judicial challenge. The U.S. EPA has made a strong case that it is acting well within its statutory authority and consistent with the Administrative Procedure Act. However, the challenges will be serious and substantial.

This article has been republished with the permission of the author.  It was first posted on the Pillsbury Winthrop Shaw Pittman LLP website.


About the Author

Anthony B. Cavender provides guidance and counseling relating to enforcement and compliance.  He has represented clients in Superfund matters, and in RCRA and Clean Water Act enforcement proceedings.  He is a Senior Counsel in the firm’s Houston office and a member of the Environmental & Natural Resources practice section. His practice focuses on the Clean Water Act, the Resource Conservation and Recovery Act and Superfund. Before joining Pillsbury, Anthony was a member of the legal department of Pennzoil Co., specializing in these areas as well as general corporate legal matters. He served on various energy industry committees and trade associations.

Greener Cleanup Metrics

The United States Environmental Protect Agency (U.S. EPA) “Principles for Greener Cleanups” provide a foundation for planning and implementing cleanups that protect human health and the environment while minimizing the environmental footprint of cleanup activities.

The U.S. EPA has developed 14 greener cleanup metrics that may be used to quantify specific portions of the footprint, such as the amounts of refined materials, public water or diesel fuel that are used or the amount of wastewater and hazardous waste that is generated.

 

Category Metric Unit of Measure
Materials
Refined materials used or conserved tons
Unrefined materials used or conserved tons
Waste Hazardous waste generated or avoided tons
Non-hazardous waste generated or avoided tons
Water Public water used or conserved million gallons
Groundwater used or conserved million gallons
Wastewater generated or avoided million gallons
Other water used or conserved million gallons
Energy Grid electricity used or conserved megawatt hours
Diesel used or conserved for equipment gallons
Diesel used or conserved for transportation gallons
Gasoline used or conserved for equipment gallons
Gasoline used or conserved for transportation gallons
Other energy used or conserved (variable)

The metrics provide an optional means for regulators, private industry and other cleanup partners to collect and track site-specific footprint information across multiple sites in a uniform and transparent manner. On a site-specific level, use of the metrics can help decision makers prioritize and select best management practices (BMPs) that could be implemented to minimize the footprint. The metrics may be applied to any type of site cleanup, including ones conducted through Superfund, RCRA or brownfield regulatory programs or voluntary initiatives.

Due to wide variations in cleanup project scopes and regional or local priorities, environmental footprints associated with other core elements of a greener cleanup may be quantified through additional metrics chosen by project stakeholders. Parties interested in quantifying a cleanup project’s environmental footprint at a more detailed level may use EPA’s Spreadsheets for Environmental Footprint Analysis (SEFA).

Questions about the Greener Cleanup Metrics may be forwarded to: Carlos Pachon, EPA/Office of Land and Emergency Management, or Hilary Thornton, EPA/Region 4.