By Steven M. Siros, Co-Chair, Environmental and Workplace Health & Safety Law Practice and Arie Feltman-Frank

Hiding in plain sight in the Fiscal Responsibility Act of 2023 (FRA)--which is intended to extend the nation’s debt limit into 2025 in order to avoid a federal default--are provisions that seek to amend the National Environmental Policy Act (NEPA) for the first time in over 40 years.  Although the FRA’s provisions greenlighting the federal permitting process for the Mountain Valley Pipeline have garnered the most attention, the FRA contains a number of other provisions meant to streamline environmental reviews of major federal actions. While many laud streamlining the NEPA process as a necessary step to bolster efficiency, several environmental groups and democratic legislators caution that these amendments significantly roll back NEPA’s regulatory reach. 

The FRA incorporates many of the provisions that were previously in Representative Garret Graves’ “Building United States Infrastructure through Limited Delays and Efficient Reviews (BUILDER) Act of 2023” that was included in its entirety in the House Republicans’ original debt ceiling bill passed in April 2023. 

Specifically, the FRA proposes the following amendments to NEPA:

• Substantial Federal Control and Responsibility. Defines “Major Federal Action” as “an action that the agency carrying out said action determines is subject to substantial Federal control and responsibility.” By adding “substantial,” the FRA emphasizes that for federal actions to trigger NEPA review, the actions don’t just need to be subject to Federal control and responsibility; the control and responsibility must be “substantial.”

• No Extraterritorial Activities or Decisions. Excludes from the definition of “Major Federal Action” extraterritorial activities or decisions, which means agency activities or decisions with effects located entirely outside of the jurisdiction of the United States. This is a more restrictive standard than has been adopted by some courts that have been called upon to evaluate the scope of NEPA. 

• Categorical Exclusions. Expands the use of categorical exclusions by allowing agencies to rely on other agencies’ categorical exclusions to avoid the preparation of a NEPA environmental assessment (EA) or environmental impact statement (EIS). 

• Reasonably Foreseeable Effects. Narrows agency considerations by only requiring review of “reasonably foreseeable” environmental effects. 

• Streamlining.  Seeks to streamline the NEPA process by requiring the designation of a “lead Federal agency” for projects that involve two or more participating Federal agencies. Imposes page limits of 75 pages for EAs and 150 pages for the majority of EISs. Imposes specific deadlines for the completion of environmental reviews, with a two-year limit on the completion of an EIS and a one-year limit on the completion of an EA, as well as a mechanism to seek judicial review for alleged failures to comply with these deadlines.

• Division of Responsibilities. Requires lead agencies to prescribe procedures to allow project sponsors to prepare EAs or EISs under the supervision of the agency. The lead agency is still required to independently evaluate the environmental document and must take responsibility for its contents.   

• Narrows Alternatives, Negative Impacts of No Action. Narrows agency considerations of the alternatives to a “reasonable range . . . that are technically and economically feasible and meet the purpose and need of the proposal,” and requires “an analysis of any negative environmental impacts of not implementing the proposed agency action in the case of a no action alternative.”

Although these amendments will likely result in fewer projects requiring an EIS and should streamline the NEPA review process, it is important to consider what the FRA does not change. For example, the BUILDER Act sought to significantly limit an agency’s consideration of cumulative impacts and those modifications did not carry through into the FRA. The FRA also does not explicitly limit or otherwise address an agency’s obligation to consider climate change impacts of federal projects. 

If these NEPA revisions survive in the final FRA, they are likely to require the White House’s Council on Environmental Quality (CEQ) to recalibrate its ongoing efforts to revise NEPA’s implementing regulations.  CEQ had sent a draft of its Phase 2 NEPA revisions to the Office of Management and Budget (OMB) for review and the draft Phase 2 revisions had been expected to be published for comment in June 2023. The statutory changes to NEPA will need to be incorporated into the Phase 2 rules, which will certainly derail CEQ’s proposed June release date. 

We will continue to provide updates on the final language in the FRA and CEQ’s ongoing NEPA rulemaking activities at the Corporate Environmental Lawyer. 

By Tatjana Vujic  Allison A. Torrence  Daniel L. Robertson  and Arie Feltman Frank

Today, the US Environmental Protection Agency released its long-awaited proposal for New Source Performance Standards for Greenhouse Gas Emissions from New, Modified, and Reconstructed Fossil Fuel-Fired Electric Generating Units; Emission Guidelines for Greenhouse Gas Emissions from Existing Fossil Fuel-Fired Electric Generating Units; and Repeal of the Affordable Clean Energy Rule (Proposed GHG Rule). This article provides an overview of the Proposed GHG Rule and identifies some issues that may lie ahead.

I. Basic Architecture of the Proposed GHG Rule

The Proposed GHG Rule includes four parts. First, as a matter of housekeeping, the proposed rule officially rescinds the Affordable Clean Energy (ACE) Rule. The ACE Rule would have set emissions guidelines for states to incorporate into measures to address greenhouse gas (GHG) emissions from existing coal-fired power plants and focused on efficiency improvements. The ACE Rule was promulgated in 2019 to replace the 2015 Clean Power Plan. In 2022, the Supreme Court issued its landmark decision in West Virginia v. EPA, which ruled that the Clean Power Plan exceeded EPA’s authority to regulate GHGs pursuant to the Major Questions Doctrine, an assessment of which can be found in our article West Virginia v. EPA: The Major Questions Doctrine Arrives to Rein in Administrative Power, published in Pratt’s Law Report.^[1]

The Proposed GHG Rule then outlines standards of performance and emissions requirements based on the Agency's determination of the best system of emissions reduction (BSER), as required by Section 111 of the Clean Air Act (CAA), for three types of generating units: (A) existing coal-fired power plants, (B) new gas-fired power plants, and (C) existing gas-fired power plants. For each of these categories of generating units, EPA establishes stratified emissions standards and compliance dates dictated by the unit’s anticipated lifespan and capacity factor. Observers may recognize that the targets and dates proposed in the rules are consistent with climate goals already set by many power generators.

II. Operation of the Fuel-Type Subcategory Approach

Within the basic categories of existing coal plants, existing gas plants, and new gas plants, the Proposed GHG Rule applies a schedule for compliance and emissions reduction targets based on an individual plant’s capacity and anticipated lifespan. These standards and subcategories are guided by EPA’s determination of what constitutes the most cost effective and demonstrated technology available, thereby meeting BSER.

• Existing Coal-Fired Generating Unit GHG Emissions Standards

For existing coal plants, EPA created four subcategories based on the projected lifespan of the individual operating unit. They include coal plants that have not committed to a date certain by which to cease operations, coal plants that have voluntarily committed to cease operations by 2040, coal plants that will retire by 2035, and coal plants that will retire by 2032.

(1) Coal Plants Anticipating Ongoing Operations

If a coal steam unit has not committed to ceasing operations, EPA will require it to meet a standard consistent with carbon capture and sequestration at a 90% capture rate.

(2) Coal Plants with a Voluntary Commitment to Cease Operations by 2040

For a coal plant that has committed to voluntary retirement before 2040, the plant must meet a standard consistent with co-firing 40% natural gas.

(3) Coal Plants Retiring By 2035

With respect to a coal plant retiring in the near term, i.e., it plans to discontinue operations by 2035, EPA proposes a more relaxed standard. The more relaxed standard requires, in addition to routine operation and maintenance activities, the plant to accept a capacity limitation of 20% by 2030 and each year of operation thereafter.

(4) Coal Plants Retiring By 2032

For coal plants with an imminent retirement schedule, which means a coal plant that commits to ceasing operations by 2032, no capacity limitations must be taken. The plant need only continue to fulfill routine operation and maintenance requirements.

The underlying message for coal plants is that if retirement looms near on the horizon, then there is not an expectation for significant investments to be made in the plant.

• New Gas-Fired Electric Generating Units

In setting a BSER for GHG emissions from new gas-fired power plants, EPA also uses subcategories to stratify the BSER analysis. In doing so, EPA appears to be striving to strike a balance between a requirement that plants install demonstrated and achievable technology and the observation that infrastructure must exist to support the technology that would make it possible to meet the standards.

The subcategories thus include standards for peaker plants or plants that have a capacity factor of 20% or less, intermediate plants, which include plants with a 20 to an approximately 50% capacity factor (used over a certain amount of time per annum), and baseload plants, which constitute plants with a capacity factor over 50%. The standards are set based on the usage of the plant – the greater the annual operation of the plant, the greater controls and stricter emissions standards required.

(1) New Gas-Fired Peaker Plants / Plants with an Annual Capacity Factor of 20% or Less

Peaker plants include natural gas-fired power plants with a capacity factor of 20% or less. The Proposed GHG Rule would require peaker plants to use clean fuels, which include natural gas, with no other requirements.

(2) New Gas-Fired Intermediate Plants / Plants with an Annual Capacity Factor between 20% and 50%

The intermediate category includes plants with a capacity factor ranging from 20% to approximately 50%. This category generally includes the most efficient simple-cycle plants. By 2032, intermediate plants will be required to meet an emissions standard equal to blending 30% hydrogen by volume into the plant’s fuel stream. The hydrogen must qualify as low GHG hydrogen, which is a standard borrowed from the Inflation Reduction Act’s hydrogen tax credit and is defined in the Inflation Reduction Act as hydrogen generated via a process that results in a lifecycle GHG emissions rate of no more than 4 kilograms of carbon dioxide equivalent (CO₂e) per kilogram of hydrogen.^[2] In the Proposed GHG Rule, EPA identifies the low hydrogen standard but defers the determination of what constitutes low hydrogen to the Department of Treasury. The Treasury Department is currently developing guidance on the implementation of the production tax credit for clean hydrogen, which includes a decision on how to account for GHG emissions as part of the hydrogen production lifecycle analysis.

(3) New Baseload Gas-Fired Electric Generating Units / Plants with an Annual Capacity Over 50%

For natural gas-fired power plants with an annual capacity factor over 50%, EPA plans to require those plants to employ efficient combined cycle technology in the first phase of operation. This means that when the plant is built, it must implement the most efficient combined cycle technology and meet an emissions standard of 770 lb CO₂/MWh-gross standard. Over time, the standard becomes stricter, seemingly to match the anticipated increased availability and advancements in technology in future years, with a choice of one of two pathways. The first pathway requires the increasing use of hydrogen, or an equivalent emissions outcome, and the second pathway would require carbon capture and storage (CCS) or an equivalent emissions outcome.

(3)(a) Hydrogen Pathway for New Baseload Gas-Fired Electric Generating Units

If a baseload plant were to choose to use hydrogen as its path for reducing its GHG emissions, it can anticipate a stepwise timeline. By 2032, the plant will have to reach a level that represents a 30% hydrogen blend by volume or reduce its emissions to an equivalent extent. Then, by 2038, the same plant will need to achieve a 96% blend of hydrogen by volume or reduce its emissions to an equivalent extent. In all instances, the source of hydrogen must meet the standards set for the lowest carbon-emitting hydrogen tax credits, which will be defined by the Department of Treasury.

(3)(b) Carbon Capture and Storage Pathway for New Baseload Gas-Fired Electric Generating Units

If a plant operator were to choose to employ CCS as a means of reducing its GHG emissions, the Proposed GHG Rule would require the plant to reach a 90% capture rate by 2035 or reduce its emissions to an equivalent extent. Note that the 90% capture rate achieves emissions reductions equivalent to a 96% blend of hydrogen in the fuel stream.

• Existing Gas-Fired Generating Units

Finally, the Proposed GHG Rule not only sets standards for new gas-fired generating units, but also for the largest and most frequently used of the existing gas-fired power plants. These plants include those that generate 300 megawatts or more of electricity per year and operate at a 50% or greater capacity factor. Under the proposal, these plants will be required to meet the 2038 hydrogen pathway standard, the 2035 CCS pathway standard, or achieve the equivalent thereof. For existing gas-fired generating units that do not meet the 300MW and 50% annual capacity factor thresholds, EPA is seeking comment on how it should regulate such units.

III. Anticipated Questions and Challenges

In addition to the obvious legal challenges regarding whether the proposed rule implicates the Major Questions Doctrine and whether the technologies and timelines constitute BSER, there remain questions regarding the definition of what constitutes clean or green hydrogen. Are hydrogen and CCS as achievable as EPA contends? Are the target dates correct? Also, the proposed rule’s new gas turbine standards will apply to any plant for which construction commences after the date of publication of the Proposed GHG Rule. This CAA provision is intended to prevent a rush to commence construction on new plants to lock in the old standards. This may lead to an early challenge of this mechanism because it becomes controlling upon the publication of the proposal and prior to the rule’s finalization.

Another question is how will states, which have two years to develop state plans to incorporate the existing source standards, go about implementing the proposed rule. Will states be able to cooperate to achieve emissions reductions, such as through emissions trading regimes, particularly if such cooperative approaches allow states to achieve equivalent or better results? Why has EPA overlooked other significant emissions reduction options, such as renewable natural gas? How will plant operators pay for these upgrades? EPA has considered the Inflation Reduction Act’s many tax incentives and the Bipartisan Infrastructure Law’s incentives and payments in determining what is economically achievable, but how easy will it be to access such funds, and how can those funds be leveraged?

• Immediate Takeaways

An initial review of the Proposed GHG Rule indicates EPA has been careful not to step outside the proverbial fenceline. EPA appears to be taking into account the implied guidance provided by the Supreme Court in West Virginia v. EPA that the Agency’s authority under the CAA to regulate power plants should focus on facilities on a unit-by-unit basis rather than an approach that relies on generation-shifting, which the Court determined exceeded EPA’s statutory authority. The rules also appear to be designed in a way and timed to align with other regulatory requirements for the power sector, such as regulations governing wastewater discharges and ozone and mercury emissions, which may streamline investments made in specific plants as well as across the power generation fleet.

Details on the findings that underlie the emissions standards and timing within the proposal will be well litigated. The ultimate question, however, will be whether the overall approach, which entails setting standards for individual plants while still providing options and flexibility by which plant operators can achieve those standards, can thread the judicial scrutiny needle. As you work through these issues, Jenner’s Transitions in Energy and Climate Solutions Practice and Environmental and Workplace Health and Safety Practice are here to help.

By Steven M. Siros, Co-Chair, Environmental and Workplace Health & Safety Law Practice

As we prepare to celebrate the 53^rd anniversary of Earth Day, it is my pleasure to kick off our Earth Day series of daily blogs penned by my colleagues at Jenner & Block.  The theme for this 53^rd Earth Day is a continuation of last year’s theme—Invest in the Planet.  As I reflect on this year’s Earth Day theme and look back on the past 53 years, I am struck by the tremendous gains that have been realized from our past investments but at the same time, recognize that there is still tremendous work to be done if we are to truly realize the ultimate return on our investment—a vibrant thriving planet for future generations.    

Since the early 1970s, we have spent trillions of dollars in the United States alone to remediate environmentally impacted sites, resulting in the removal of millions of pounds of contaminants from soil and groundwater.  Again, focusing just on the United States, between 1970 and 2020, the combined emissions of six common pollutants (particulate matter, sulfur dioxide, volatile organic compounds, carbon monoxide, and lead) have dropped more than 77%.  Billions of dollars have been spent to prevent the direct discharge of untreated sewage into our rivers and oceans and we have progressed from it being a common occurrence for rivers to catch fire to the Chicago River now actively being used for a variety of recreational purposes, including kayaking and fishing (although I still don’t recommend jumping into the river after a particularly heavy rainstorm).  We now see that most Fortune 500 companies have robust environmental compliance programs and generate annual sustainability reports touting their environmental, health and safety accomplishments. 

Much has been accomplished since 1970 when it wasn’t unusual for industrial solid waste and raw sewage to be discharged directly into the environment.  Now, it is the rare occurrence when we read about these types of direct releases of pollutants into our environment.  Notwithstanding, the planet continues to face significant environmental threats.  New emerging contaminants threaten our drinking water supplies and greenhouse gas emissions (GHGs) contribute to changing atmospheric conditions impacting the global community. 

While we must remain diligent so as not to walk back the significant progress that we have already made, it is important that we also proactively identify and implement creative solutions to respond to new environmental challenges.  Consistent with the 53^rd Earth Day theme—Invest in Our Planet—we must ensure that we focus our investments on those environmental issues that pose the greatest risks to our planet in order to maximize our return on our investment.  

Building on this theme, in our weekly series of Earth Day blogs, on Tuesday, we turn our attention to emerging contaminants and the significant challenge these new emerging contaminants pose both in terms of identifying these emerging contaminants and crafting regulations that are appropriately protective of human health and the environment.  On Wednesday we observe the historic investment opportunity presented by the convergence of efforts to address climate change and spur the energy transition, such as public grant programs, regulatory regimes, and, the biggest lever, tax credits.  Thursday’s blog will discuss some of the financial incentives to encourage mitigation of GHGs found in the recently promulgated Inflation Reduction Act.  To close out our blog series, as more and more companies recognize the significant return on investment that can be achieved by investing in our planet, we will provide guidance and best practices to mitigate the liability risks associated with “greenwashing” claims. 

We hope that you will find these blogs insightful and thought-provoking.  We only have one planet, and it is incumbent on all of us to invest in that planet to ensure its continued viability for future generations.    

By Steven M. Siros, Co-Chair, Environmental and Workplace Health & Safety Law Practice

As we await final agency action on U.S. EPA’s pending rulemaking to designate perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) as CERCLA
hazardous substances, U.S. EPA has just published an advanced notice of proposed rulemaking (ANPR) soliciting public input on whether to add additional PFAS to CERCLA’s list of hazardous substances.  When U.S. EPA initially proposed adding PFOS and PFOA to the CERCLA list of hazardous substances, there was significant outcry from environmental groups that argued that the proposed listing didn’t go far enough while industry groups argued that CERCLA was the wrong tool to address PFAS contamination.  U.S. EPA’s solicitation of comments on whether to add additional PFAS to the CERCLA hazardous substance list is certain to generate significant input from both groups.

In its ANPR, U.S. EPA seeks input on whether it should designate as CERCLA hazardous substances (1) seven additional PFAS and their salts and structural isomers; (2) precursors of these seven PFAS, plus the precursors of PFOA and PFOS; and (3) categories of PFAS.  The seven specific PFAS called out in the ANPR are perfluorobutanesulfonic acid (PFBS), perfluorohexanesulfonic acid (PFHxS), perfluurononanoic acid (PFNA), hexaluoropropylene oxide dimer acid (HFPO-DA, aka GenX), perfluorobutanoic acid (PFBA), perfluorhexanoic acid (PFHxA), and perfluorodecanoic acid (PFDA).  U.S. EPA selected these seven PFAS based on the availability of toxicity information previously reviewed by U.S. EPA and other Federal agencies. 

In addition to seeking information on these specific seven PFAS, U.S. EPA also seeks comments on whether to add to the list of CERCLA hazardous substances salts and precursors of these seven PFAS (as well as precursors of PFOA and PFOS).  Some PFAS can be formed by the degradation of other chemical substances and U.S. EPA’s ANPR solicits input on which substances do in fact degrade into these specific PFAS compounds and the manner in which this degradation might occur.  

Finally, the ANPR seeks input on whether U.S. EPA should designate groups or categories of PFAS as CERCLA hazardous substances, noting that PFAS may share similar characteristics such as chemical structure, physical and chemical properties, mode of toxicological action, precursors, degradants, or co-occurrence.  U.S. EPA references its 2020 Significant New Use Rule (SNUR) for long-chain perfluoroalkyl carboxylate (LCPFAC) as an example of its regulation of a category of PFAS.  Again, environmental groups have long sought to compel U.S. EPA to regulate PFAS as a class while industry groups have argued to the contrary, pointing out the substantial differences in toxicity and physical/chemical characteristics between different PFAS. 

Like U.S. EPA’s proposal to designate PFOS and PFOA as CERCLA hazardous substances, U.S. EPA’s latest ANPR is certain to generate input from a broad spectrum of commenters.  The comment period currently is set to expire on June 12, 2023 (60 days from the date of publication).  We will continue to provide timely updates on U.S. EPA’s ongoing efforts to designate certain PFAS as CERCLA hazardous substances at the Corporate Environmental Lawyer blog. 

  By Steven M. Siros and Arie Feltman-Frank

PFAS are being detected in drinking water systems across the United States. Moreover, evolving regulatory developments already require or soon will 
require that public water systems sample for and remediate these chemicals (see, e.g., here). When public water systems find PFAS, which is a
significant possibility, public water systems are likely to look to upstream industrial facilities to recoup their remediation costs. And, once PFOA and PFOS becomes CERCLA hazardous substances (likely Summer 2023), public water systems will have a federal cause of action to do so: CERCLA cost recovery.

Among other potential defendants, public water systems may target upstream industrial facilities that have PFOA or PFOS in their wastewater discharges. Indeed, recent U.S. EPA guidance explains that the Clean Water Act’s National Pollutant Discharge Elimination System (NPDES) program, which regulates wastewater discharges, “interfaces with many pathways by which [PFAS] travel and are released into the environment, and ultimately impact water quality and the health of people and ecosystems.”

Industry categories known or suspected to discharge PFAS include: organic chemicals, plastics & synthetic fibers (OCPSF); metal finishing; electroplating; electric and electronic components; landfills; pulp, paper & paperboard; leather tanning & finishing; plastics molding & forming; textile mills; paint formulating; and airports. Of course, this is not an exhaustive list.

While U.S. EPA’s Office of Water is working to revise Effluent Limitation Guidelines and develop water quality criteria to support technology-based and water quality-based effluent limits for PFAS in NPDES permits, there are currently no enforceable limits at the federal level. As an interim measure, recent U.S. EPA guidance describes steps that NPDES permit writers can implement under existing authorities to reduce PFAS discharges, including incorporating monitoring requirements, best management practices, and site-specific limits developed on a best professional judgment basis into permits.

An important question will be whether upstream industrial facilities that have PFAS in their wastewater discharges will be able to rely on the federally permitted release exemption as an affirmative defense to CERCLA liability. This exemption provides that parties are not liable under CERCLA for federally permitted releases. See 42 U.S.C. § 9607(j). The exemption also extends to state permitted releases under federally approved programs. Blankenship v. Consolidation Coal Co., 850 F.3d 630, 638 (4th Cir. 2017).

In the NPDES context, the exemption most notably covers “discharges in compliance with a permit.” See 42 U.S.C. § 9601(10)(A). The limited case law on this issue sheds light on two points. First, the exemption can only cover what a NPDES permit can regulate – the discharge of pollutants into navigable waters from a point source. Second, the exemption does not apply with respect to releases that (1) were not expressly permitted, (2) exceeded the limitations of the permit, or (3) occurred at a time when there was no permit. 

In 1995, U.S. EPA offered some guidance as to its interpretation of the scope of this exemption. Specifically, the Agency stated that the exemption would apply if: (1) the source, nature, and amount of the potential release had been identified and made part of the public record during the permitting process, and (2) the permit contains a condition requiring that the treatment system be capable of eliminating or abating the potential release.

Going back further in time, in a 1988 proposed rule that never took effect, U.S. EPA explained that the exemption covers discharges that are in compliance with a permit limit that specifically addresses the discharge in question. To qualify, the permit must either address the discharge directly through specific effluent limitations or through the use of indicator pollutants. In the case of the latter, the administrative record prepared during permit development must identify specifically the discharge of the pollutant as one of those pollutants the indicator is intended to represent.

Industrial facilities that have PFOA or PFOS in their wastewater discharges should evaluate whether their permits have any provisions that address these chemicals. Assuming they do not, which is the most likely scenario at this early stage, it is unlikely that the federally permitted release exemption will apply. However, if there are provisions that address these chemicals, or if the applicable permitting agency seeks to add such provisions through original permit issuance, modification, or renewal, businesses should consider the extent to which this will influence whether the federally permitted release exemption may apply.

Specifically, when negotiating permit conditions, businesses should keep in mind that U.S. EPA guidance suggests that for the exemption to apply, the source, nature, and amount of the potential PFOA or PFOS release must be identified and made part of the public record during the permitting process, and the resulting permit must contain a condition requiring that the treatment system be capable of eliminating or abating the potential release.

Considering this guidance, it is unlikely that the incorporation of mere monitoring requirements and/or best management practices that do not eliminate or abate the potential release of PFOA or PFOS will be sufficient for a discharger to rely on the federally permitted release exemption. However, the incorporation of site-specific limits developed on a best professional judgment basis likely will.

Indeed, it may be in the best interest of businesses to advocate for provisions in their permits that address PFOA and PFOS to minimize their risk or extent of future CERCLA liability. An important consideration will be the cost of eliminating or abating the potential release of PFOA or PFOS now versus the likelihood and associated cost of being sued for CERCLA cost recovery and ultimately having to pay the costs associated with remediating the unpermitted discharges of PFOA or PFOS later.

We will continue to provide timely updates on U.S. EPA’s ongoing efforts to regulate PFAS under the various environmental statutes at the Corporate Environmental Lawyer.

By Steven M. Siros, Co-Chair, Environmental and Workplace Health & Safety Law Practice

Almost two years to the date after U.S. EPA issued its regulatory determination for contaminants on the forth Contaminant Candidate List, U.S. EPA has issued its draft rule setting drinking water limits for several PFAS compounds.  Specifically.  U.S. EPA’s draft rule proposes a four part per trillion (ppt) maximum contaminant level (MCL) for perfluorooctanoic acid (PFOA) and perfluorooctane sulfonic acid (PFOS).  According to an U.S. EPA fact sheet that accompanied the proposed rule, the four ppt level is the lowest concentration that can be reliably detected within “specified limits of precision and accuracy during routine laboratory operations conditions”. 

These proposed MCLs are higher than U.S. EPA’s previously issued health advisory levels (HALs) of 0.004 ppt for PFOA and 0.02 ppt for PFOS.  The reason for the higher proposed MCL levels is due in large part to the fact that U.S. EPA is required to consider available treatment technologies and treatment costs when setting an MCL which it is not required to do when setting a HAL.  U.S. EPA’s proposed maximum contaminant level goal (MCLG) for these specific PFAS which doesn’t need to consider technical feasibility of cost is “0”.  With respect to its previously issued HALs, U.S. EPA specifically noted that following receipt of public comments and finalization of the PFAS MCL, it will decide whether to update or remove the HALs for PFOA and PFOS. 

U.S. EPA’s draft rule also proposes to regulate several additional PFAS, including hexafluoropropylene oxide dimer acid (commonly referred to as GenX), perfluorononanoate (PFNA), perfluorohexanesulfonic acid (PFHxS), and perfluorobutane sulfonic acid (PFBS).  Rather than proposing an MCL for these PFAS,  U.S. EPA instead seeks to regulate these PFAS utilizing a hazard index which is a screening level approach that provides a risk indicator rather than a risk estimate for a mixture of components.

This hazard index approach is sometimes used by other federal agencies, including the Agency for Toxic Substances and Disease Registry.  Under this hazard index approach, U.S. EPA has identified health-based water concentrations (HBWCs) (i.e., the level at which no health effects are expected for that PFAS) for PFHxS (9 ppt); GenX (10 ppt), PFNA (10 ppt) and PFBS (200 ppt).  The detected concentration of each PFAS in drinking water is then divided by the HBWC to get a individual hazard quotient (HQ).  The hazard index is the summation of each of these HQs—if the hazard index value exceeds 1.0, then that would be an exceedance of the MCL.

The MCLs will become effective three years after they are finalized.   At that time, public drinking water systems will be obligated to test for these specific PFAS and take steps to mitigate any exceedances that are identified. 

U.S. EPA has proposed a 60-day comment period on the draft rule; however, in light of what are expected to be significant public comments, it is likely that this comment period will be extended. 

We will continue to provide timely updates on U.S. EPA’s ongoing efforts to regulate PFAS under the various environmental statutes at the Corporate Environmental Lawyer. 

    By Steven Siros, Partner and Daniel L. Robertson, Associate Attorney

On February 14, 2023, the Maine Department of Environmental Protection (MDEP) issued a proposed draft rule that provides guidance on reporting requirements and sales prohibitions for products and product components containing intentionally added Per- and Polyfluoroalkyl substances (PFAS). This proposed rule comes on the heels of two prior MDEP concept drafts and public hearings attended by hundreds of interested parties that generated a significant number of substantive comments.

In July 2021, the Maine Legislature enacted An Act to Stop Perfluoroalkyl and Polyfluoroalkyl Substances Pollution. The law sets forth three main objectives: (1) banning the sale of any product containing intentionally added PFAS by January 1, 2030; (2) banning the sale of carpets, rugs, and fabric treatments with intentionally added PFAS beginning on January 1, 2023; and (3) creating reporting requirements for manufacturers of products with intentionally added PFAS, also beginning on January 1, 2023.  In the absence of implementing regulations as of the January 1, 2023 effective date of the law, MDEP granted compliance extensions to hundreds of manufacturers, following the Maine State Chamber of Commerce actively encouraging Maine businesses to seek extensions.

MDEP’s latest draft rule clarifies a number of issues, including providing guidance on which PFAS chemicals must be reported, conditions for seeking waivers or exemptions from the reporting requirements, submitting claims for confidential business information, and certain fee requirements.

With regards to reporting, the draft rule specifies that the notification must include:

1. a) A brief description of the product;
2. b) The purpose for which PFAS are used in the product, including any product component;
3. c) The amount of each PFAS as a concentration, identified by name and its chemical abstract service (CAS) registry number, of each PFAS in the product or any product component reported as an exact quantity determined using commercially available analytical methods, or as falling within a range approved by MDEP; and
4. d) The name and address of the reporting manufacturer and information identifying a responsible officer for the manufacturer.

MDEP notes that because the statute requires notification of intentionally added PFAS by CAS number, chemicals which do not have a CAS number assigned are not subject to the reporting requirements or use prohibitions. The latest draft also removes a prior proposed requirement that manufacturers report estimated sales volume for the product. In defining a manufacturer, the proposal clarifies that, in the event a product contains more than one manufacturer, MDEP “will consider the party who controls the formulation of the product and its PFAS content to be the manufacturer.”

The proposal further provides language on waiver requirements and preemption. MDEP may waive all or part of the notification requirement if MDEP determines that “substantially equivalent information” is publicly available. “Substantially equivalent information” is defined in part as “an existing notification by a person who manufactures a product or product component when the same product or product component is offered for sale under multiple brands.”

A product for which federal law or regulation controls the presence of PFAS in the product is exempt from the proposed requirements. Federal preemption is described as “a determination that the intent of federal laws is to limit or eliminate overlapping programs at the state level.” MDEP “will treat as exempt products where an applicable federal law is written with language that explicitly preempts parts of this program . . . [or] any products where an applicable opinion from a court having jurisdiction in Maine finds that preemption of parts of this program is implied.” There are also exemptions for products subject to Maine Revised Statutes Title 32, Sections 26-A (Reduction of Toxics in Packaging) and 26-B (Toxic Chemicals in Food Packaging). This state exemption specifically applies to items being used as packaging, packing components, or food packing and intended for marketing, handling or protection of products.

MDEP also revised its rules for reporting confidential business information, with the latest draft stating that claims of confidential business information may be made at the time of notification. MDEP will handle these claims in accordance with Maine’s Freedom of Access Act, Maine Revised Statutes and related policies and procedures. The proposal notes in particular that information courts would find to be privileged is excluded from public disclosure.

Finally, the proposed rule clarifies the requirements on product components, noting that “[a] separate notification and fee are only required for product components when they are offered or distributed in Maine without being incorporated into a more complex product.”

The draft rule fails, however, to clarify what if any obligation is imposed on a manufacturer that unknowingly sells or distributes for sale a product that contains “intentionally added PFAS.”   For example, a manufacturer may use an ingredient or component that itself contains “intentionally added PFAS” but the manufacturer may lack “knowledge” of the presence of the PFAS in the ingredient or component.  Moreover, because even the best laboratories can detect only a few of the more than 9,000 different PFAS, it is often impossible for a manufacturer to know whether a product sold or distributed in Maine contains “intentionally added PFAS”.  The regulations are silent on what, if any, compliance obligations may be triggered by what is a fairly common occurrence. 

Manufacturers of products sold in Maine that may contain PFAS would be well served to carefully evaluate this proposed rule to determine how best to ensure compliance with the January 1, 2023 reporting obligations and subsequent sale prohibitions.   Affected entities may elect to submit comments on the proposed rule on an individual basis or through a trade association.  The public comment period closes on May 19, 2023.

We will continue to monitor Maine’s PFAS reporting rulemaking and other nationwide PFAS-reporting developments on Corporate Environmental Lawyer.

By Steven Siros, Daniel L. Robertson and Arie Feltman-Frank

Developing a Proactive and Strategic Game Plan

Per- and polyfluoroalkyl substances (PFAS) in consumer products continue to be in the regulatory and litigation spotlight in 2023. Manufacturers and downstream businesses should be actively preparing to comply with the continually evolving patchwork of federal and state PFAS laws, as well as taking steps to minimize litigation risks. Below, our team of attorneys offers strategic advice for manufacturers and downstream businesses with respect to how regulatory and litigation PFAS developments may apply to them and best practices for minimizing regulatory and litigation risk with respect to same.

I.     State Consumer Product PFAS Laws

Consumer products that are currently the subject of state PFAS laws include carpets, rugs, and fabric treatments, children’s products, cookware, cosmetics, food packaging, furniture, oil and gas products, ski wax, and textiles and apparel, but this is a continually evolving list. Businesses that manufacture and sell these and similar products should be carefully evaluating whether these products contain PFAS, in which states the products are or will be manufactured, distributed, or sold, and what the PFAS laws and regulations are in those states. State PFAS laws can be categorized by the PFAS they regulate, the requirements they impose, and other notable nuances.

1. Regulated PFAS

Thousands of PFAS have been identified by the U.S. Environmental Protection Agency (EPA),[1] but PFAS laws may not apply to all. Thus, when reviewing their applicability, businesses should consider how PFAS laws define PFAS and whether they apply broadly to all PFAS or only a specific subset of PFAS. Businesses should also consider whether there are specific threshold concentrations or whether the regulations are triggered by the presence of any PFAS in the product. Lastly, businesses should consider whether the laws only apply to “intentionally” added or introduced PFAS that serve an intended function. Each of these are discussed, in turn, below.

            A.    PFAS Defined and Specific Subsets

State PFAS laws generally broadly define PFAS as a class of fluorinated organic chemicals containing at least one fully fluorinated carbon atom.[2] Some laws apply to PFAS generally. For example, California’s Chemicals of Concern in Food Packaging, Juvenile Products, and Textile Articles laws prohibit “regulated” PFAS, and their definitions of “regulated” do not narrow their prohibitions’ coverage to a specific PFAS subset.

In contrast, other laws only apply to a specific subset of PFAS. These narrower laws may identify the regulated PFAS themselves or refer to chemicals designated or listed by a state regulatory agency. For example, Maryland’s Cosmetic Products law specifically lists thirteen specific PFAS that fall within its regulatory purview. Similarly, Maine’s Toxic Chemicals in Children’s Products law applies to “priority chemicals,” and perfluorooctanesulfonic acid (PFOS) is the only PFAS that the Maine Department of Environmental Protection has currently designated as such. Importantly, PFAS chemicals that are not subject to prohibitions now may fall victim in the future. Thus, businesses that choose to continue using unregulated PFAS in their products may find themselves forced to adjust their ingredient lists down the road.

            B.    Threshold Concentrations

In addition to identifying the regulated PFAS, businesses should consider whether state PFAS laws specify threshold concentrations that trigger their requirements as these may influence compliance obligations.

For example, Oregon’s Toxic-Free Kids Act imposes disclosure requirements on manufacturers of children’s products that contain a high priority chemical.

but only if the chemical is “in an amount at or above a de minimis level.” For an intentionally added chemical, the de minimis level is the “practical quantification limit” (PQL), which means the lowest concentration of a chemical that can be reliably measured within specified limits during routine laboratory operating conditions. The Oregon Health Authority has defined the PQL for intentionally added PFOS as 0.001 parts per million. For a chemical that is a “contaminant,” which is defined as trace amounts of chemicals that are incidental to manufacturing and that serve no intended function in the product component, the de minimis level is 100 parts per million (see more on unintentional PFAS below).

In a similar fashion, Maine’s An Act to Stop PFAS Pollution imposes disclosure requirements on manufacturers of products with intentionally added PFAS. However, the Maine Department of Environmental Protection has suggested in its FAQs[3] that notification is only required if intentionally added PFAS are detectable when analyzing the product using a commercially available analytical method (above the PQL). The Department understands “commercially available analytical method” to mean any test methodology used by a laboratory that performs analyses or tests for third parties to determine the concentration of PFAS present. 

Finally, California’s Chemicals of Concern in Food Packaging and Juvenile Products laws, which prohibit “regulated” PFAS, specify that PFAS may be considered “regulated” if their presence is at or above 100 parts per million, as measured in total organic fluorine. California’s Textile Articles law provides a similar threshold concentration requirement, as does Vermont’s Chemicals of High Concern to Children law.

Thus, compliance with state PFAS laws may require that businesses be able to reliably measure the concentration of PFAS (or total organic fluorine) in their final products, which will depend on the availability of commercially available testing methods. While EPA has developed approved methods for measuring PFAS concentrations in environmental matrices such as air, water, waste, and pesticides, these methods may not be specifically applicable for consumer products. Notably, the American Society for Testing and Materials (ASTM) has announced that it created a new subcommittee that will develop standards for measuring PFAS in consumer products. ASTM’s efforts are ongoing.

Importantly, limitations in measuring capabilities may pose unique compliance challenges.[4] The traditional PFAS testing methods are liquid chromatography-tandem mass spectrometry (LC/MS/MS) or gas chromatography-mass spectrometry (GC-MS), but these methods target only a specific subset of PFAS—presently approximately 42 unique PFAS.

To address these limitations, there are numerous emerging technologies and methodologies. For example, to evaluate the presence of precursor molecules that can break down or transform into PFAS, total oxidizable precursors (TOPs) assay can be utilized as it was in a recent study to measure the presence of PFAS in a range of household items.[5] Other methodologies such as combustion ion chromatography (CIC), particle-induced gamma ray emission (PIGE), neutron activation analysis (INAA), and X-ray photoelectron spectroscopy (XPS), can be used to quantify total organic fluorine that some state regulators have elected to rely upon as a proxy for PFAS.[6] There are, however, significant risks in relying on total organic fluorine as a proxy for PFAS as numerous studies have documented limitations in this methodology.[7]

Businesses should be reviewing commercially available methods to measure the concentration of PFAS in their products, as well as be cognizant as to how these methods are evolving. Businesses may also want to consider seeking clarification from regulatory agencies on which methods are appropriate for specific consumer products. 

            C.    Intentionality and Functionality

Many state PFAS laws only apply when PFAS are “intentionally” added or introduced to covered products for a specific purpose.[8] Notably, the introduction or addition of PFAS does not need to be direct. Intentionally adding or introducing product ingredients that are not regulated PFAS but break down or transform into PFAS in final products may render state PFAS laws applicable, too. Therefore, businesses should assess whether PFAS (or other chemicals that may serve as precursor molecules of regulated PFAS) are being used in their manufacturing process and for what purpose. Businesses that use PFAS or PFAS precursor product ingredients in their manufacturing process for a specific purpose should evaluate the extent to which they can phase out these ingredients and find substitutes.   

Some laws specifically exempt unintentional PFAS from regulation. For example, Connecticut’s Cosmetic Products law clarifies that a person is not in violation of the law’s PFAS prohibition if the product was manufactured through a process to comply with the law and contains a technically unavoidable trace quantity of regulated PFAS due to an impurity of a natural or synthetic ingredient, the manufacturing process, storage, or packaging.

However, other laws may not let manufacturers off the hook if the unintentional PFAS is above identified threshold concentrations. As discussed above, California’s Chemicals of Concern in Food Packaging, Juvenile Products, and Textile Articles laws and Vermont’s Chemicals of High Concern to Children law establish threshold concentration requirements.

Even if PFAS are not being used to manufacture the product itself, they may still end up in the final product. One way this may happen is through leaching from the product packaging. For example, EPA studies have revealed that PFAS from fluorinated high-density polyethylene (HDPE) container walls of pesticide products can leach into the contents of the containers. In fact, EPA has recently initiated enforcement action against a company that utilized fluorine gas in the manufacture of plastic containers from which EPA claims PFAS are leaching into the products stored in these containers. 

In sum, even if businesses do not use PFAS in their manufacturing process, they would be wise to carefully audit their supply chains to minimize the risk of PFAS winding up in their final products. Moreover, as explained further below, businesses with PFAS in their products, even if their presence is unintentional and not in violation of any specific federal or state regulation, may still be subject to private party litigation.

Finally, although not the primary focus of this client alert, businesses should consider the downstream pathways of their products and other equipment that may contain PFAS because releases into the environment may trigger Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) reporting requirements and liability once perfluorooctanoic acid (PFOA) and PFOS (and other PFAS down the road) become designated as CERCLA hazardous substances (see more on remediation demands below).[9]

2. Requirements

Requirements fall into two categories: disclosures and prohibitions. While some state PFAS laws directly impose requirements, others give regulatory agencies the authority to. Below is a collection of consumer product categories and state PFAS laws, including the types of requirements imposed and their effective dates.

While some laws are already in effect, others will take effect later this year. For example, Vermont’s prohibitions on intentionally added PFAS in carpets and rugs, food packaging, and ski wax, and California’s prohibition on regulated PFAS in children’s products, will take effect on July 1 of this year. Connecticut’s and New York’s prohibition on intentionally added PFAS in food packaging and apparel, respectively, will take effect on December 31. Other laws won’t take effect until 2024 or beyond.

State PFAS Laws/Regulations Targeting Consumer Products

3. Other Notable Nuances

Finally, state PFAS laws can be characterized by other notable nuances. For example, some laws provide defenses for sellers and distributors that rely in good faith on manufacturer certificates of compliance. Others provide exemptions for certain products or parties or provide a vehicle for regulatory agencies to extend deadlines. Businesses should carefully consider these nuances when evaluating their options.

II.     Federal Consumer Product PFAS Regulations, Bills, and Liability

In addition to preparing to comply with the patchwork of state PFAS laws, businesses should be following and preparing to comply with evolving PFAS obligations at the federal level and seeking to understand and address potential liabilities. These include:

• Reporting obligations under Section 313 of the Emergency Planning and Community Right-to-Know Act for facilities that manufacture, process, or otherwise use certain PFAS that have been added to the Toxic Release Inventory. Notably, if EPA’s December 5, 2022, proposed rule[10] takes effect, covered facilities will no longer be able to avoid PFAS reporting obligations under the “de minimis exemption,” which allows facilities to evade reporting requirements with respect to mixtures or other trade name products containing PFOS concentrations below 0.1% and other covered PFAS concentrations below 1%. Covered facilities will also no longer be able to take advantage of other burden-reduction reporting options. Businesses should consider submitting comments on the proposed rule, which must be received on or before February 3, 2023.

• Notification requirements associated with importing articles and carpets containing certain PFAS. Specifically, EPA’s Significant New Use Rule,[11] promulgated under the Section 5(a) of the Toxic Substances Control Act (TSCA), became effective on September 25, 2020, and requires persons to notify EPA at least 90 days before commencing the import of a subset of PFAS chemicals as part of a surface coating on articles and PFOS as part of carpets. The rule provides that examples of articles could include apparel, outdoor equipment, automotive parts, carpets, furniture, and electronic components.

• Potential future reporting and recordkeeping requirements for manufacturers and importers of PFAS for PFAS manufactured in any year since January 1, 2011. Under EPA’s proposed rule,[12] proposed pursuant to Section 8(a)(7) of TSCA, articles containing PFAS, including imported articles containing PFAS (such as articles containing PFAS as part of surface coatings), are included in the scope of reportable chemical substances.

• Potential future testing and reporting obligations for manufacturers or processors of certain PFAS that may be on the receiving end of TSCA Section 4(a) testing orders. Under TSCA, the term “processor” includes persons who prepare chemical substances for distribution in commerce as part of articles.[13] These orders require recipients to test identified chemical substances to determine whether they have adverse health or environmental effects.

• Keep Food Containers Safe from PFAS Act of 2021 (3169): This bill was introduced in the U.S. Senate on November 4, 2021, and would amend the Federal Food, Drug, and Cosmetic Act to, effective January 1, 2024, prohibit the introduction or delivery for introduction into interstate commerce of food packaging containing intentionally added PFAS, and for other purposes. The bill’s sponsor is U.S. Senator Margaret Wood Hassan of New Hampshire.

• No PFAS in Cosmetics Act (2047): This bill was introduced in the U.S. Senate on June 14, 2021, and would require the Secretary of Health and Human Services to issue a proposed rule to ban the use of intentionally added PFAS in cosmetics no later than 270 days after the bill’s enactment and finalize such rule not later than 90 days after issuing the proposed rule. The bill’s sponsor is U.S. Senator Susan M. Collins of Maine.

• Safe Drinking Water Act (and state) regulatory developments and remediation demands: EPA is developing a National Primary Drinking Water Regulation (NPDWR) for PFOA and PFOS, which will lead to the establishment of Maximum Contaminant Levels (MCLs) for these PFAS.[14] In the interim, EPA has developed[15] non-regulatory health advisory levels for PFOA and PFOS, as well as final health advisory levels for other PFAS. EPA is also evaluating additional PFAS and considering regulatory actions to address groups of PFAS. For example, EPA’s Fifth Contaminant Candidate List[16] includes a group of PFAS, which may lead to a NPDWR for these PFAS down the road. Also, the Fifth Unregulated Contaminant Monitoring Rule[17] requires certain public water systems to collect samples of 29 PFAS between 2023 and 2025. Notably, in addition to these federal developments, several states have established MCLs and notification requirements for certain PFAS. To comply with these regulatory developments, public water systems may detect and remediate PFAS in drinking water and target nearby consumer product manufacturers or downstream businesses with PFAS in their products to try to force them to pay remediation costs.

III.    Litigation

Finally, businesses should proactively stay ahead of new PFAS litigation trends in the consumer product context.

1. Current Litigation

As consumer interest in PFAS increases, there is a corresponding increased focus on reporting of PFAS in consumer products. Perhaps not surprisingly, this reporting has spawned litigation.

For example, after a 2022 Consumer Reports review discussed PFAS in packaging products from restaurants and grocery chains, companies named in the report, including Burger King, were sued. In a similar fashion, after Toxic-Free Future published a report on the use of PFAS in water or stain-resistant textiles, one of the companies in the report, Recreational Equipment, Inc. (REI), was sued in California in April 2022, with a second lawsuit filed in Washington in October 2022. Personal care brands and cosmetic manufacturers such as L’Oreal and Cover Girl are facing similar lawsuits, the L’Oreal lawsuit citing a June 2021 Notre Dame research study that investigated the use of PFAS in 231 cosmetic products.

The lawsuits generally allege breaches of express or implied warranties, fraudulent concealment, unjust enrichment, and consumer protection act violations and track similar themes, targeting a business for touting its product as “sustainable,” “safe,” or “green” when the product allegedly contains PFAS known to be harmful. Statements of “transparency” in product ingredients have also been targeted where the use of PFAS was not clearly stated. Unjust enrichment claims tend to allege a company saved money by using PFAS-coated products instead of more expensive, but safer, alternatives. Injury claims, such as in the REI cases, allege that a consumer was led to believe they were spending money on a premium, environmentally friendly brand versus lower-cost competitors.

At least one lawsuit has already been defeated. For example, on November 30, 2022, a district court in Pennsylvania dismissed a lawsuit against Artsana USA, Inc., commonly known as Chicco, that alleged a failure by Chicco to disclose the use of PFAS in its KeyFit 30 children’s car seat in either its packaging, labelling, or ingredients list. The plaintiff, who did not allege any health impacts, instead alleged that she overpaid for the product thinking it was PFAS-free based on Chicco’s omissions and misrepresentations. The plaintiff also pointed to a Chemical Policy on Chicco’s website that claimed the KeyFit 30 to be PFAS-free.

On a motion to dismiss, the court held that the plaintiff did allege an injury-in-fact by paying a price premium for a product the plaintiff believed to be PFAS-free. However, the court also held that the plaintiff failed to state a claim for which relief could be granted because Chicco is not required to disclose the chemicals it uses to treat its car seats and because the plaintiff did not rely on the Chemical Policy when purchasing the car seat. The court further held that the plaintiff failed to follow statutory requirements to notify the defendant of a breach of express or implied warranty.

Other consumer product company defendants have similarly pushed to dismiss litigationThe disposition of these and related lawsuits will bring needed clarity to businesses with respect to how they advertise their products.

2. Future Outlook

It is likely that plaintiff’s firms will continue to aggressively pursue lawsuits in this area. With most lawsuits focusing on product representations, businesses should pay special attention to how they address PFAS in their consumer-facing descriptions.

Retailers can also expect increased pressure from consumers to remove PFAS-containing products from their catalogs. This, in turn, will put pressure on manufacturers and upstream suppliers to ensure products reaching retail are PFAS-free, as well as increase retailer and consumer demands directed at manufacturers and suppliers for product ingredient information.

IV.    Conclusion

Manufacturers and downstream businesses should be dedicating resources to comply with regulatory developments and minimize litigation risk. Our team of attorneys can help businesses examine how PFAS developments apply to them, as well as help businesses develop a proactive and strategic game plan.

[1] See PFAS Master List of PFAS Substances, EPA (Aug. 10, 2021), https://comptox.epa.gov/dashboard/chemical-lists/pfasmaster.

[2] Sometimes state PFAS laws use the language “all” or “any” members.

[3] While the disclosure requirements took effect January 1, 2023, the Maine Department of Environmental Protection is currently in the process of developing regulations. The Department’s website notes that the answers in its FAQs are subject to change in response to feedback and changes in regulation.

[4] Cf. Kelsey L. Rodriguez et al., Recent Developments of PFAS-Detecting Sensors and Future Direction: A Review, Micromachines (Basel). 2020 Jul; 11(7): 667, at 2 (noting the limitations in the practical applications of traditional technologies used to measure PFAS in environmental matrices). For one example of regulatory-detection  mismatch in the drinking water context, EPA’s interim health advisory levels for perfluorooctanoic acid (PFOA) and PFOS, 0.004 and 0.02 parts per trillion, respectively, are below the level of both detection and quantitation for these chemicals.

[5] Kathryn M. Rodgers et al., How Well Do Product Labels Indicate the Presence of PFAS in Consumer Items Used by Children and Adolescents?, Environ Sci Technol. 2022 May 17; 56(10): 6294–6304.

[6] Lara Schultes et al., Total Fluorine Measurements in Food Packaging: How Do Current Methods Perform?, Environ. Sci. Technol. Lett. 2019, 6, 2, at 73–78.

[7] See, e.g., Anna Brinch et al., Risk Assessment of Fluorinated Substances in Cosmetic Products, Ministry of Environment and Food of Denmark. 2018 Oct, at 31.

[8] PFAS are generally added to consumer products to impart water and stain resistance.

[9] See 87 Fed. Reg. 54,415 (Sept. 6, 2022).

[10] 87 Fed. Reg. 74,379.

[11] 85 Fed. Reg. 45,109 (July 27, 2020).

[12] 86 Fed. Reg. 33,926 (June 28, 2021).

[13] See 15 U.S.C. §2602(13), (14).

[14] In March 2021, EPA published Regulatory Determinations for Contaminants on the Fourth Contaminant Candidate List, which included a final determination to regulate PFOA and PFOS in drinking water. 86 Fed Reg. 12,272 (Mar. 3, 2021) (Regulatory Determinations); 81 Fed. Reg. 81,099 (Nov. 17, 2016) (Fourth Contaminant Candidate List).

[15] 87 Fed. Reg. 36,848 (June 21, 2022).

[16] 87 Fed Reg. 68,060 (Nov. 14, 2022).

[17] 86 Fed. Reg. 73,131 (Dec. 27, 2021).

By Steven Siros, Tatjana Vujic and Arie Feltman-Frank

As businesses continue to optimize their environmental, social, and governance (ESG) strategies, an important arrow in the ESG quiver may be carbon di oxide (CO₂) capture and storage (CCS). CCS involves capturing, compressing, transporting, and then injecting CO₂ into deep underground porous rock formations for long-term storage, known as geological sequestration (GS). These formations are often a mile or more beneath the surface and overlaid by impermeable, non-porous layers of rock that trap the CO₂ and prevent it from migrating upward.

The effectiveness of carbon capture,[1] coupled with the robust storage capacity available in the United States,[2] make CCS a promising method to minimize the climate-forcing effects of CO₂ emissions. Indeed, the Security and Exchange Commission’s (SEC’s) proposed climate-disclosure rule refers to investing in CCS technologies as one way by which companies can “take advantage of climate-related opportunities.” CCS may also be a viable compliance option for “major” federal contractors which, according to a recently proposed Federal Acquisition Regulatory Council rule, will be required to set “science-based targets” to reduce their greenhouse gas (GHG) emissions in order to do business with the federal government.

Injecting CO₂ underground is not new. For decades, the oil and gas industry has been utilizing enhanced oil recovery (EOR), a process that involves injecting CO₂ into oil-bearing formations to increase the amount of oil and gas produced from oil and gas reservoirs. What is relatively new, however, is the increased focus on GS as a vital, if not indispensable,[3] part of meeting CO₂-reduction goals. This client alert will predominantly focus on the GS component of CCS and the permitting requirements associated with GS of CO₂ for the purpose of meeting GHG reduction targets.

I    The Safe Drinking Water Act and Geological Sequestration of CO₂

The primary federal program governing GS of CO₂ is the Safe Drinking Water Act’s (SDWA’s) Underground Injection Control (UIC) program. According to EPA, the “chief goal” of the UIC program is the “protection” of underground sources of drinking water (USDWs).[4] Under the SDWA, EPA must publish regulations for state UIC programs that “contain minimum requirements for effective programs to prevent underground injection which endangers drinking water sources.”[5] Interested states can then apply for primary enforcement responsibility of the UIC program, known as “primacy.”[6]

The statutory vehicle for primacy applicable to GS of CO₂ is section 1422, whereby states must demonstrate that, among other requirements, they have adopted and will implement a UIC program that meets the “minimum requirements” established by the federal regulations.[7] While the federal regulations establish a floor, they do not preclude states from adopting or enforcing “more stringent or [] extensive” requirements or “[o]perating a program with a greater scope of coverage.”[8] If EPA approves a state’s UIC program, the state achieves primacy; if EPA disapproves the program (or parts thereof), or if a state fails to apply, the federal UIC program applies.[9]

There are six classes of underground injection wells that are regulated under the SDWA.[10]  Of these classes, Class VI and Class II wells are most relevant to GS of CO₂.

Class VI wells are used for non-experimental GS of CO₂.[11] EPA promulgated regulations governing minimum federal requirements for Class VI wells by final rule on December 10, 2010.  The regulations are generally set forth at 40 C.F.R. Parts 124, 144, 145, and 146 and required EPA to establish a Federal UIC Class VI program in each state that did not submit a complete primacy application by September 6, 2011. Because no state applied by the deadline, on September 6, 2011, the federal Class VI program became effective nationwide.

Since then, only North Dakota and Wyoming have achieved Class VI primacy. In all other states, the federal program applies. Only two Class VI permits have been issued under the federal UIC program, both by EPA Region 5 to Archer Daniels Midland in Decatur, Illinois, which took EPA approximately three years to issue (measured from the date the applications were submitted to issuance). Another 28 Class VI permit applications are pending in California, Illinois, Indiana, Louisiana, Ohio, and Texas. It is anticipated that over time, the permitting process will become both faster and more efficient, especially in light of increased funding provided by the Infrastructure Investment and Jobs Act (IIJA), which appropriates $5 billion annually to EPA over the next five years for the permitting of Class VI wells as a way to facilitate more CCS.[12]

Class II wells, which include wells that inject fluids into oil and gas reservoirs for EOR,[13] are also relevant to GS of CO₂ because long-term storage of CO₂ in these wells can be incidental to the injection process. Notably, most states have achieved Class II primacy.[14] When EOR results in some “incidental storage” of CO₂ in a Class II well, the owner or operator is likely not required to seek a Class VI permit. However, if the owner or operator elects to use a Class II well originally used for EOR to inject CO₂ for the “primary purpose of long-term storage,” the regulations require that the owner or operator obtain a Class VI permit “when there is an increased risk to USDWs compared to Class II operations.”[15]

We are not aware of any instances where EPA has required an owner or operator to obtain a Class VI permit for a previously permitted Class II well. As such, one attractive option for owners or operators of Class II wells used for EOR may be to utilize these wells for long-term GS of CO₂, given that the Class II requirements are less stringent. Because Class VI wells are the primary wells used for long-term CO₂ storage, the remainder of this client alert will predominantly focus on Class VI wells.

    A.    Geological Sequestration Projects in States Where the Federal UIC Class VI Program Applies.

In states in which the federal UIC Class VI program applies, to receive a Class VI permit that would allow for GS of CO₂, businesses need to submit a Class VI permit application to the appropriate EPA regional office within “a reasonable time before construction is expected to begin.”

Because the primary requirement of the UIC program is to ensure that GS of CO₂ will not threaten any USDWs, businesses need to carefully choose where to locate their wells. In particular, wells need to be placed at sites of “suitable” geology.  Of suitable geology means that the injection zone can receive the total anticipated volume of the CO₂ stream, while the confining zone, i.e., the area in which the CO₂ will be stored, must be free of transmissive faults or fractures and sufficient to contain the injected CO₂ stream. The confining zone also must be able to withstand injection without initiating or propagating fractures that would allow the CO₂ to migrate outside its bounds.[16] GS of CO₂ must also be beneath the lowermost formation containing a USDW unless a waiver of the injection depth requirements has been granted.^[17]

In their applications, Class VI permit applicants must include information regarding the proposed injection well, its construction, the proposed operations, and geologic, hydrologic, and other information regarding the area around the project where USDWs may be endangered, which is known as the “area of review.” The area of review is “delineated using computational modeling.”[18] Applications must also include plans related to the area of review and the types of corrective action, testing and monitoring, injection well plugging, post-injection site care and site closure, and emergency and remedial response that will be provided. Lastly, applications must provide proof that the applicants meet financial responsibility requirements.[19]

Throughout the application process, applicants should consider whether the information submitted to EPA can be claimed as confidential business information. If so, they should be sure to make a confidential business information assertion in their applications or else risk the possibility that their applications could be subject to public disclosure.[20]

Once cessation of injection occurs, owners and operators must continue to monitor the site for “at least 50 years” or until EPA decides that the GS project no longer poses an endangerment to USDWs. Owners and operators also must report any evidence that the injected CO₂ stream or associated pressure front may cause endangerment to a USDW.[21]

If any indication of movement of any contaminant into an USDW exists, the permittee will be subject to “additional requirements . . . as are necessary to prevent such movement,” which are imposed by modifying the permit or terminating the permit if “cause” exists. In addition, in the absence of “appropriate” state or local action, EPA may take “emergency action” when “a contaminant which is present in or likely to enter a public water system or [USDW] may present an imminent and substantial endangerment to the health of persons.”[22]

    B.    Geological Sequestration Projects in States That Have Achieved Class VI Primacy

As noted previously, only North Dakota and Wyoming have achieved Class VI primacy.[23] Thus, businesses interested in pursuing GS in these states will have to do so in accordance with the states’ respective Class VI regulations. North Dakota’s Class VI program is administered by the North Dakota Oil & Gas Division. To date, North Dakota’s Oil & Gas Division has issued two Class VI permits and has one permit application under review. Wyoming’s Class VI program, on the other hand, is administered by the Wyoming Department of Environmental Quality. To date, Wyoming has received two Class VI permit applications, each of which are still under review.

In contrast to the three-year permitting time for the two Class VI permits issued by EPA Region 5, the time to review and approve the two permits issued by the North Dakota Oil & Gas Division was approximately eight months. It is expected, however, that the annual $50 billion in grant funding made available through the IIJA over the next five years[24] will drive more states to seek Class VI primacy. The likely result will be that more projects may be able to get permitted faster.

II    Obstacles, New Developments, and Other Considerations

Despite the significant funding and attention given to CCS as a climate mitigation tool, businesses interested in pursuing CCS should be aware of potential obstacles they may encounter and be required to navigate. These obstacles include high project costs, public opposition, and uncertainties associated with subsurface pore space ownership and long-term liability. While other project specific requirements are likely to arise, such as compliance with additional federal, state, and local laws,[25] a review of these additional requirements is beyond the scope of this client alert. 

    A.    High Project Costs.

High project costs are a key challenge to CCS development. Whether a project’s costs are high or not will depend on several factors, including the type of facility, the facility’s proximity to the injection site, the availability of CO₂ transportation infrastructure, and tax credits and grants.

Taking each of these factors in turn, certain facilities will be at an advantage when it comes to cost thanks to characteristics like the concentration of the CO₂ stream. In particular, CO₂ capture is most cost-effective for facilities that generate highly concentrated CO₂ streams.[26]

With respect to transportation, the closer the CO₂-producing facility is to the injection site, the lower the overall costs will be. Also, CCS is likely to be most cost-effective in areas with a history of oil and gas extraction and EOR, such as California, Illinois, Kansas, Oklahoma, and Texas, where the approximately 5,000 miles of CO₂ pipelines established in the United States are largely located.[27] While the expansion of CO₂ pipeline infrastructure will be necessary for large-scale CCS development, the need for additional pipeline to deliver the CO₂ to the injection site creates not only more infrastructure costs but also more requirements with which more costs, such as permit and land acquisition and related compliance with pipeline safety regulations, are likely associated.[28]

Importantly, the cost equation may be changing owing to the expanded 45Q tax credits established by the 2022 Inflation Reduction Act (IRA), which are available in addition to funding provided by the IIJA. Although a detailed overview of these statutes’ provisions is beyond the purview of this client alert, at a high level, the IRA increased the 45Q tax credits for certain facilities or equipment placed in service after December 31, 2022, to $85 per ton of CO₂ disposed of in secure geologic storage and $60 per ton of CO₂ used for EOR and disposed of in secure geologic storage or otherwise utilized in a qualified manner.[29] As mentioned above, in addition to the IRA-driven tax credits, the IIJA provided significant funding for CCS, some of which was allocated to the U.S. Department of Energy, which recently released three funding opportunity announcements and established a new finance program that may help CCS developers reduce costs further.

    B.    Public Opposition.

Despite its upsides, it is possible that CCS projects may draw opposition from the public, which can present serious developmental challenges. To address potential opposition, businesses would be wise to consider how to authentically engage with community stakeholders at the outset of project development to try to avoid contentious permitting processes to the extent possible.

However, should public opposition escalate into formal attempts to prohibit or restrict GS of CO₂, businesses should consider whether these efforts may be preempted.[30] Although the SDWA contains a savings clause that provides that “[n]othing in this subchapter shall diminish any authority of a State or political subdivision to adopt or enforce any law or regulation respecting underground injection,”[31] some courts have found local actions to be preempted, as best exemplified in EQT Prod. Co. v. Wender.[32]

In the case, the U.S. Court of Appeals for the Fourth Circuit affirmed a district court’s determination that the West Virginia UIC program established under the West Virginia Water Pollution Control Act (WPCA) preempted a county ordinance that imposed a blanket ban on the disposal of wastewater anywhere within the county.[33]

The Fourth Circuit explained that municipal ordinances that are inconsistent or in conflict with state law are preempted and further concluded that the ordinance’s prohibition was inconsistent with West Virginia’s UIC program because the permanent disposal of wastewater in Class II wells “is licensed and regulated by the state pursuant to a comprehensive and complex permit program.” The court also rejected the county’s argument that the WPCA’s savings clause, which preserves the power of local entities to “suppress nuisances,” permitted the county to broadly designate UIC wells as nuisances and then categorically ban them. The court refused to give the savings clause this broad and less logical reading absent express language and instead interpreted the clause as allowing local regulation that “touch[ed] on the licensed activity.” This had the effect of preserving the county’s right to bring a common law public nuisance action against a state permitted UIC well on a case-by-case basis.

This case suggests that local actions, at least those that have the effect of banning or prohibiting otherwise permitted GS projects, may be preempted by state or federal law.

    C.    Subsurface Pore Space Ownership and Long-Term Liability.

Finally, businesses interested in pursuing GS should consider uncertainties associated with subsurface pore space ownership and long-term liability. Ways to circumvent pore space ownership and liability issues are described below.

First, to effectuate GS of CO₂, businesses will need to acquire ownership or control of the pore space in which the CO₂ will be stored. This step, in turn, will require determinations as to subsurface ownership rights, which are influenced by whether the pore space is located under federal or non-federal land. For projects located under non-federal land, who owns subsurface pore space will ultimately depend on the language employed in legal instruments related to the property rights at issue and state law. The “majority rule,” however, appears to be that the surface rights owner has the relevant property interest and holders of mineral rights do not, merely by virtue of these rights, have ownership or control of subsurface pore space.[34] States like Wyoming and North Dakota have enacted laws to address uncertainties associated with subsurface pore space ownership by specifying that surface rights owners own the underlying pore space.[35]

With respect to long-term liability, as explained previously, owners and operators must continue to conduct monitoring post-injection for at least 50 years or until the GS project no longer poses an endangerment to USDWs before site closure. In addition to post injection site care and site closure, owners and operators must maintain financial responsibility over emergency and remedial response.[36] Some states like Indiana, Texas, and Louisiana have established processes for transferring long-term liability to the state to alleviate the chilling effect that concerns over long-term liability might have on GS development.[37]

III.    Conclusion

As businesses explore ways to execute their GHG emissions reduction targets, CCS looms large.  Jenner & Block’s Environmental and Workplace Health & Safety, and Transitions in Energy and Climate Solutions Practices not only can help businesses assess whether CCS is a viable option for them, but also can strategically and efficiently navigate each stage of the CCS process to accelerate desired outcomes in a cost-effective manner.

[1] For example, one type of CO₂ capture, post-combustion capture, typically captures 85% to 95% of the CO₂. Angela C. Jones & Ashley J. Lawson, Cong. Rsch. Serv., R44902, Carbon Capture and Sequestration (CCS) in the United States 4 (2022), https://sgp.fas.org/crs/misc/R44902.pdf [hereinafter Oct. 2022 CRS Report].

[2] The United States Department of Energy estimates there to be a total storage capacity of between about 2.6 trillion and 22 trillion metric tons of CO₂. Id. at 9. Theoretically, the United States contains enough storage capacity to store all CO₂ emissions from large stationary sources, at the current rate of emissions, for centuries. Cong. Rsch. Serv., Injection and Geological Sequestration of Carbon Dioxide: Federal Role and Issues for Congress 3 (2022), https://crsreports.congress.gov/product/pdf/R/R46192[hereinafter Sept. 2022 CRS Report].

[3] For example, according to the Council on Environmental Quality (CEQ), GS of CO₂ will “likely [be] needed to deliver on the Paris Agreement goals to hold warming well below 2 degrees Celsius and pursuing efforts to hold warming to 1.5 degrees Celsius, which is necessary to prevent the worst impacts of climate change.” CEQ, Report to Congress on Carbon Capture, Utilization, and Sequestration 6 (2021), https://www.whitehouse.gov/wp-content/uploads/2021/06/CEQ-CCUS-Permitting-Report.pdf [hereinafter CEQ Report].

[4] 75 Fed. Reg. 77,230, 77,235 (Class VI Rule); see also 42 U.S.C. §300h(b)(1)(B); 40 C.F.R. §144.12.

[5] 42 U.S.C. §§300h(a)-(b); 40 C.F.R. Part 145, Subpart B (imposing minimum requirements for permitting, compliance evaluation programs, enforcement authority, and sharing of information).

[6] 42 U.S.C. §300h-1(b)(1); 40 C.F.R. §144.1(f)(2). Indian tribes may, too. 42 U.S.C. §§300h-1(e); 40 C.F.R. Part 145, Subpart E.

[7] See 42 U.S.C. §300h-1; Class VI Rule at 77,241 (explaining that states must demonstrate that their “regulations are at least as stringent as those promulgated by EPA”).

[8] 40 C.F.R. §145.1(g). Though where an approved state program has a greater scope of coverage, the additional coverage is not part of the federally approved program. Id. §145.1(g)(2).

[9] 42 U.S.C. §§300h-1(b)(3), (c).

[10] 40 C.F.R. §144.6.

[11] Notably, Class V wells are used for experimental injection of CO₂ (e.g., Department of Energy-supported research wells). See id. §144.81(14). “The construction, operation, or maintenance of any non-experimental Class V GS well is prohibited.” Id. §144.15. By December 10, 2011, owners or operators of experimental technology wells no longer being used for experimental purposes were required to apply for a Class VI permit. Id. §146.81(c). EPA has noted that it “anticipates that few, if any Class V experimental technology well permits will be issued under SDWA for future GS projects.” 76 Fed. Reg. 56,982, 56,983.

[12] 42 U.S.C. §300h-9.

[13] 40 C.F.R. §144.6(b)(2).

[14] Sept. 2022 CRS Report, supra note 2, at 15.

[15] See 40 C.F.R. §144.19(a).

[16] 40 C.F.R. §146.83(a). According to the United States Geological Survey, areas with the most storage potential are the Coastal Plains region, which includes coastal basins from Texas to Georgia, Alaska, and the Rocky Mountains – Northern Great Plains. Which area is the best for geologic carbon sequestration?, USGS, https://www.usgs.gov/faqs/which-area-best-geologic-carbon-sequestration (last visited Dec. 12, 2022).

[17] 40 C.F.R. §§144.6(f), 146.95

[18] See id. §§146.82(a), 146.81.

[19] Id.; id. §146.85(a)(2). Applicants will likely need to hire environmental consultants to provide support at every phase of the GS project.

[20] See id. §144.5.

[21] Id. §§146.93(b), 146.91(c)(1).

[22] Id. §144.12; 42 U.S.C. §300i.

[23] Other states are also moving towards primacy; Texas, Arizona, and West Virginia are in the “pre-application” phase, while Louisiana’s primacy application is being evaluated.

[24] Id. §300h-9.

[25] See CEQ Report, supra note 3, at 30.

[26] Adam Baylin-Stern & Niels Berghout, Is Carbon Capture Too Expensive?, IEA (Feb. 17, 2021), https://www.iea.org/commentaries/is-carbon-capture-too-expensive.

[27] Oct. 2022 CRS Report, supra note 1, at 8, 23.

[28] See CEQ Report, supra note 3, at 25-31. Using marine vessels may also be a feasible option for CO₂ transport. Oct. 2022 CRS Report, supra note 1, at 8.

[29] According to CEQ, “[c]arbon utilization is a broad term used to describe the many different ways that captured . . .  CO₂ . . . can be used [] to produce economically valuable products or services.” CEQ Report, supra note 3, at 13. The IRA-driven tax credits are an increase from the previous tax credits of $50 and $35, respectively. To qualify for the tax credits, qualified facilities must begin construction by December 31, 2032.

[30] For example, in a recent lawsuit filed against Livingston Parish in the United States District Court for the Middle District of Louisiana, developer Air Products is arguing that the parish’s attempts to restrict its proposed GS project are preempted by state and federal law.

[31] 42 U.S.C. §300h-2(d).

[32] 870 F.3d 322, 332 (2017).

[33] The court refused to decide the question of federal preemption on constitutional avoidance grounds. The court clarified that the question posed by the ordinance’s prohibition was whether the county could effectively “nullify” the Class II permit issued by DEP pursuant to the WPCA. The case did not require the court to consider “the authority of a county to regulate matters that are only related to or associated with a state-permitted activity.”

[34] Cong. Rsch. Serv., RL34307, Legal Issues Associated with the Development of Carbon Dioxide Sequestration Technology (2011), https://www.everycrsreport.com/reports/RL34307.html. Though the mineral rights owner could have priority over uses of the land, including the ability of the surface rights owner to make use of the pore space, that would interfere with the mineral rights holder’s ability to remove minerals.

[35] Wyo. Stat. §§34 -1-152, 34-1-153 (2009); N.D. Cent. Code §47-31-02 et seq. (2009).

[36]  40 C.F.R. §146.85(a).

[37] See CEQ Report, supra note 3, at 43.

By:  Daniel L. Robertson, Associate Attorney

On December 5, 2022, the United States Environmental Protection Agency (USEPA) proposed a rule eliminating an exemption that currently allows facilities to avoid reporting the use of small concentrations of Per- and polyfluoroalkyl substances (PFAS).

PFAS chemicals, commonly referred to as “forever chemicals” due to their longevity, are commonly used in consumer products and industrial processes. The Biden administration has prioritized addressing PFAS as they apply to public health, as outlined in the USEPA’s PFAS Strategic Roadmap released in October 2021. That roadmap sets forth timelines by which the USEPA intends to act on various policies impacting public health, the environment, and accountability.

The 2020 National Defense Authorization Act (NDAA) added certain PFAS to the list of chemicals covered by the Toxics Release Inventory (TRI) for the 2021 reporting year. Under the current provisions, however, facilities that report to the TRI can disregard de minimis concentrations of TRI-listed PFAS in mixtures or trade name products (below 1% concentration, except for Perfluorooctanoic acid which is set at 0.1%).

The USEPA’s action follows a press release from earlier this year wherein the Agency expressed concern at the low number of reporting facilities, seemingly as a result of the existing exemption. The current proposal will add PFAS subject to reporting requirements under the Emergency Planning and Community Right-to-Know Act (EPCRA) and the Pollution Prevention Act (PPA) to the list of Lower Thresholds for Chemicals of Special Concern, eliminating the de minimis reporting exemption. Due to the low concentration of PFAS used in many products, the USEPA contends removing the existing “reporting loophole” will increase data collected for PFAS, thereby providing a clearer picture of PFAS releases and waste management quantities.

The proposal will also remove the de minimis exemption for purposes of the Supplier Notification Requirements for all listed Chemicals of Special Concern, which includes chemicals like lead and mercury. The USEPA states that doing so will ensure purchasers are informed of the presence of these chemicals in the products they purchase.

Parties that may be impacted by the proposal are those who manufacture, process, or otherwise use listed PFAS or any chemicals listed under 40 CFR 372.28. Anyone wishing to comment on the proposal must submit comments by February 2, 2023 through the Federal eRulemaking Portal using docket identification number EPA–HQ–TRI–2022–0270.

In related news, the USEPA on December 6, 2022 released a guidance memorandum providing states with directions on how to use the National Pollutant Discharge Elimination System (NPDES) permit program to protect against PFAS. According to the USEPA’s press release, the guidance “recommends that states use the most current sampling and analysis methods in their NPDES programs to identify known or suspected sources of PFAS and to take actions using their pretreatment and permitting authorities, such as imposing technology-based limits on sources of PFAS discharges.”

We will continue to monitor these and other federal PFAS developments on the Corporate Environmental Lawyer blog.

 By Steven M. Siros, Chair, Environmental and Workplace Health & Safety Law Practice

                                                                                                                                                                                                                               
On November 2, 2022, U.S. EPA released the pre-publication version of the fifth contaminant candidate list (CCL 5) containing 66 chemicals, 12 microbes, and three chemical groups (per- and polyfluoroalkyl substances (PFAS), cyanotoxins, and disinfection byproducts).  Under the Safe Drinking Water Act (SDWA), every five years, U.S. EPA is obligated to publish a list of unregulated contaminants and contaminant groups that are known or anticipated to occur in public water systems and that may require regulation.  Once on the CCL, U.S. EPA will compile and evaluate additional data and then proceed to make regulatory determinations for those contaminants that U.S. EPA determines present the greatest public health concerns.  A regulatory determination is a formal decision by U.S. EPA that is the first step in developing a national primary drinking water regulation for a specific contaminant. For example, U.S. EPA recently made regulatory determinations for perfluorooctanesulfonic acid (PFOS) and perfluorooctanoic acid (PFOA) and is in the process of working on developing drinking water standards for these contaminants.

With respect to the PFAS chemical group included in CCL 5, U.S. EPA defined PFAS as a class of chemicals with the chemical structure R-(CF2)-C(F)(R’),R” where the CF2 and the CF moieties are saturated carbons and none of the R groups can be hydrogen.  The definition triggered opposition from both industry and environmental groups.  Industry groups opposed the class approach, noting that not all PFAS pose the same risks and that adopting a class approach can lead to the regulation of useful and necessary products.  Environmental group, on the other hand, sought a broader definition that would include any compound containing at least one fully fluorinated methyl or methylene carbon atom. 

U.S. EPA specifically acknowledged that this definition as limited to the CCL 5 and should not be reviewed as representing U.S. EPA’s definition of PFAS for all regulatory programs.  However, U.S. EPA does seem more sympathetic to the concerns raised by the environmental groups as evidenced by the following excerpt from the pre-publication notice: 

EPA is also aware there may be emerging contaminants such as fluorinated organic substances that may be used in or are a result of the PFAS manufacturing process (e.g., starting materials, intermediates, processing aids, by-products and/or degradates) that do not meet the structural definition. Those emerging PFAS contaminants or contaminant groups may be known to occur or are anticipated to occur in public water systems, and which may require regulation. If emerging PFAS contaminants or contaminant groups are identified, EPA may consider moving directly to the regulatory determination process or consider listing those contaminants for future CCL cycles. EPA will continue to be proactive in considering evolving occurrence and health effects data of these emerging contaminants.

We will continue to track U.S. EPA’s ongoing efforts to regulate PFAS in the various environmental media and provide timely updates on the Corporate Environmental Lawyer blog.

By Daniel L. Robertson, Associate Attorney, and Steven M. Siros, Chair, Environmental and Workplace Health & Safety Law Practice

The California Office of Administrative Law (OAL) recently approved a revised Proposition 65 warning label requirement for the use of acrylamide in food and beverages. California’s Office of Environmental Health Hazard Assessment (OEHHA), the revision’s proponent, contends the language will resolve the First Amendment claims being asserted by the California Chamber of Commerce (CalChamber) in federal district court in California.  Following OAL’s approval, OEHHA’s “safe harbor warning” for acrylamide will become operative on January 1, 2023.

Under California’s Safe Drinking Water and Toxic Enforcement Act of 1986, commonly referred to as Proposition 65 (Prop. 65), businesses are required to provide warnings to consumers about significant exposures to chemicals that cause cancer, birth defects or other reproductive harm.  As of February 25, 2022, almost 1,000 chemicals are subject to this requirement and one of these chemicals is acrylamide.

Acrylamide can form through a natural chemical reaction in high-temperature cooking processes such as frying, roasting, and baking, and is commonly found in food products such as coffee, grain and potato products.  Studies indicate that it has likely always been present in foods cooked at high temperatures.

In 2019, CalChamber sued the California Attorney General for violating its members’ First Amendment rights against compelled speech by requiring food products containing acrylamide to include a Prop. 65 cancer warning.  In its complaint, CalChamber alleges that acrylamide was identified as a carcinogen solely on the basis of laboratory animal studies, and that its members will be required to convey “to consumers the false and misleading message that consuming the products will increase consumers’ risk of cancer, even though there is no reliable evidence that exposure to dietary acrylamide increases the risk of cancer in humans.”  The Council for Education and Research on Toxics (CERT) intervened in the matter to defend the Prop. 65 acrylamide warning.

In March 2021, the court issued a preliminary injunction that barred new Prop. 65 acrylamide lawsuits from being filed during the pendency of the litigation, noting that the Attorney General had not shown that the warning requirements were “purely factual and uncontroversial.”  CERT appealed the court’s ruling and on March 17, 2022, the Ninth Circuit Court of Appeals upheld the lower court’s ruling, thereby reinstating the district court’s preliminary injunction.  The Ninth Circuit specifically acknowledged statements by scientific bodies such as the Food and Drug Administration, American Cancer Society, the National Cancer Institute, and even the State of California to emphasize the “robust disagreement by reputable scientific sources” of whether acrylamide can be linked to cancer in humans. On October 26, 2022, the Ninth Circuit denied CERT’s petition for rehearing en banc.

In direct response to CalChamber’s First Amendment challenge, on September 17, 2021, OEHHA issued a Notice of Proposed Rulemaking that proposed the following “safe harbor warning” for acrylamide in food and beverages:

Consuming this product can expose you to acrylamide, a probable human carcinogen formed in some foods during cooking or processing at high temperatures. Many factors affect your cancer risk, including the frequency and amount of the chemical consumed. For more information including ways to reduce your exposure, see www.P65Warnings.ca.gov/acrylamide.  

Notwithstanding OEHHA’s efforts to respond to CalChamber’s First Amendment challenge, the new “safe harbor warning” will not stop the ongoing litigation in that CalChamber claims that this new warning language continues to violate its members’ First Amendment rights.  As such, the CalChamber lawsuit will continue to move forward and any subsequent ruling by the court will provide additional clarification on potential First Amendment limitations on Prop. 65 warnings. 

We will continue tracking Proposition 65 developments through the Corporate Environmental Lawyer.  

By Daniel L. Robertson, Associate Attorney, and Steven M. Siros, Chair, Environmental and Workplace Health & Safety Law Practice

On September 16, 2022, California’s Office of Environmental Health Hazard Assessment (OEHHA) submitted to the California Office of Administrative Law (OAL) a revised Proposition 65 warning label requirement for the use of acrylamide in food and beverages that OEHHA claims will resolve the First Amendment claims being asserted by the California Chamber of Commerce (CalChamber) in federal district court in California.  OAL is expected to approve OEHHA’s “safe harbor warning” for acrylamide by the end of October 2022.     

Under California’s Safe Drinking Water and Toxic Enforcement Act of 1986, commonly referred to as Proposition 65 (Prop. 65), businesses are required to provide warnings to consumers about significant exposures to chemicals that cause cancer, birth defects or other reproductive harm.  As of February 25, 2022, almost 1,000 chemicals are subject to this requirement and one of these chemicals is acrylamide. 

Acrylamide can form through a natural chemical reaction in high-temperature cooking processes such as frying, roasting, and baking, and is commonly found in food products such as coffee, grain and potato products.  Studies indicate that it has likely always been present in foods cooked at high temperatures.

In 2019, CalChamber sued the California Attorney General for violating its members’ First Amendment rights against compelled speech by requiring food products containing acrylamide to include a Prop. 65 cancer warning.  In its complaint, CalChamber alleges that acrylamide was identified as a carcinogen solely on the basis of laboratory animal studies, and that its members will be required to convey “to consumers the false and misleading message that consuming the products will increase consumers’ risk of cancer, even though there is no reliable evidence that exposure to dietary acrylamide increases the risk of cancer in humans.”  The Council for Education and Research on Toxics (CERT) intervened in the matter to defend the Prop. 65 acrylamide warning.

In March 2021, the court issued a preliminary injunction that barred new Prop. 65 acrylamide lawsuits from being filed during the pendency of the litigation, noting that the Attorney General had not shown that the warning requirements were “purely factual and uncontroversial.”  CERT appealed the court’s ruling and in March 2022, the Ninth Circuit Court of Appeals upheld the lower court’s ruling, thereby reinstating the district court’s preliminary injunction.  The Ninth Circuit specifically acknowledged statements by scientific bodies such as the Food and Drug Administration, American Cancer Society, the National Cancer Institute, and even the State of California to emphasize the “robust disagreement by reputable scientific sources” of whether acrylamide can be linked to cancer in humans.

In direct response to CalChamber’s First Amendment challenge, on September 17, 2021, OEHHA issued a Notice of Proposed Rulemaking that proposed the following “safe harbor warning” for acrylamide in food and beverages:

Consuming this product can expose you to acrylamide, a probable human carcinogen formed in some foods during cooking or processing at high temperatures. Many factors affect your cancer risk, including the frequency and amount of the chemical consumed. For more information including ways to reduce your exposure, see www.P65Warnings.ca.gov/acrylamide.  

Notwithstanding OEHHA’s efforts to respond to CalChamber’s First Amendment challenge, the new “safe harbor warning” will not stop the ongoing litigation in that CalChamber claims that this new warning language continues to violate its members’ First Amendment rights.  As such, the CalChamber lawsuit will continue to move forward and any subsequent ruling by the court will provide additional clarification on potential First Amendment limitations on Prop. 65 warnings. 

We will continue tracking Proposition 65 developments through the Corporate Environmental Lawyer blog.  Regardless of OAL’s decision on the latest regulatory proposal, the current action and similar litigation relating to glyphosate establish a litigation roadmap for businesses that may otherwise be subject to Prop. 65 requirements based on disputed science.

As Gay Sigel walked through the doors at One IBM Plaza in Chicago, fresh out of law school and ready to launch her career as an attorney at Jenner & Block, she could not have envisioned the tremendous impact she would have on her clients, her colleagues, and her community over the next 39 years. Gay started her legal career as a general litigator, but Gay and Bob Graham were quick to realize how the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) was creating a new and exciting area of the law that was increasingly important for the firm’s clients: Environmental Law. Gay and Bob saw an opportunity to specialize in that area and founded Jenner & Block’s Environmental Health and Safety Practice. Gay has been an ever-present force in the EHS community ever since.

Over her 39-year career at Jenner & Block, Gay has worked on some of the most significant environmental cases in the country for clients ranging from global Fortune 50 corporations to environmental organizations to individuals. For more than a decade, she taught environmental law at Northwestern University, helping shape the next generation of environmental lawyers. She has worked on issues of global impact, like those affecting climate change, issues of local impact like those related to combined sewer overflows to the Chicago River, and issues of individual impact like those involving employee safety and health. No matter the subject, Gay has always been a tireless advocate for her clients. We often describe her as the Energizer Bunny of environmental lawyers: she is the hardest working attorney we have ever met. 

Gay’s true passion is to make this world a better, more just place for others. So, throughout her career as an environmental, health, and safety lawyer, Gay has devoted her time, energy, and emotional resources to innumerable pro bono cases and charitable and advocacy organizations. Her pro bono work includes successfully protecting asylum applicants, defending criminal cases, asserting parental rights, and defending arts organizations in OSHA matters. Among her many civic endeavors, Gay was a founding member of the AIDS Legal Council of Chicago (n/k/a as the Legal Council for Health Justice); she was the Secretary and active member of the Board of Directors for the Chicago Foundation for Women; and she was on the Board of the New Israel Fund. Gay continues to promote justice wherever she sees injustice, including as an advocate for women’s rights, particularly for women’s reproductive rights.

In both her environmental, health, and safety practice as well as her pro bono and charitable work, Gay is a tremendous mentor to younger (and even older) attorneys. She is curious, committed, exacting, fearless, and demanding (though more of herself than of others). We all give Gay much credit for making us the lawyers we are today.

Gay is leaving Jenner & Block to embark on her next adventure. She is returning to public service as Assistant Corporation Counsel Supervisor with the City of Chicago's Department of Law where she will be focusing on environmental issues. The City and its residents will be well served as Gay will bring her vast experience and unparalleled energy to work tirelessly to protect the City and its environment. We will miss working with and learning from Gay on a daily basis, but we look forward to seeing the great things she will accomplish for the City of Chicago. We know we speak for the entire firm as we wish Gay bon voyage—we will miss you! 

Steven M. Siros, Allison A. Torrence, Andi S. Kenney

By Steven M. Siros, Co-Chair, Environmental and Workplace Health & Safety Law Practice

On August 16, 2022, U.S. EPA released its Interim Environmental Justice and Civil Rights in Permitting Frequently Asked Questions (FAQ) that provides guidance to federal, state, and local environmental permitting entities on integrating environmental justice (EJ) and civil rights into relevant environmental permitting decisions.  Lilian Dorka, director of U.S. EPA’s External Civil Rights Compliance Office (ECRCO), emphasized that the information in the FAQ isn’t new and that environmental permitting decisions are always supposed to consider the EJ and civil rights impacts of the permit.  Rather, according to Director Dorka, the FAQ is an effort by U.S. EPA to compile existing information on integrating EJ and civil rights into the permitting process into a single document. She also noted that this is an interim document and EPCRO is working on separate guidance document to provide further direction on how permitting entities should consider civil rights in permitting decisions, including Title VI’s disparate impact analysis. 

One of the more interesting parts of the FAQ is the following paragraph:

If there are no mitigation measures the permitting authority can take, whether within or outside the permitting program, that can address the disparate impacts, and there is no legally sufficient justification for the disparate impacts, denial of the permit may be the only way to avoid a Title VI violation. Whether denial of a permit is required to avoid a Title VI violation is a fact-specific determination that would take into account an array of circumstances, including whether the facility will have an unjustified racially disproportionate impact, as well as the less discriminatory alternatives available. 

This is one of the first times that U.S. EPA has clearly articulated its position that a permit can be denied solely because it may violate Title VI although the occasions when a permit has been denied on this basis have historically been far and few between. However, a recent example of how EJ and civil right issues can impact the permitting process is currently playing out in Chicago where the City of Chicago denied a permit for a metal recycling facility following receipt of a letter from U.S. EPA noting significant civil rights concerns associated with the facility’s operations.  Notwithstanding that the Illinois Environmental Protection Agency had already issued the facility an air permit allowing the facility to commence operations,  the City of Chicago denied the facility an operating permit based primarily on the purported disparate impact of the facility on disadvantaged communities.  The City’s permit denial is currently being challenged in an administrative proceeding. 

The FAQs are clearly consistent with U.S. EPA’s ongoing efforts to integrate President Biden’s Justice40 Initiative that sets a goal of ensuring that 40% of the overall benefits of certain federal investments flow to disadvantaged communities. We will continue to track U.S. EPA’s efforts to ensure that its permitting decisions are appropriately protective of disadvantaged communities at the Corporate Environmental Lawyer blog. 

By Steven M. Siros, Co-Chair, Environmental and Workplace Health & Safety Law Practice

On August 12, 2022, the Office of Management and Budget (OMB) completed its review of U.S. EPA’s proposed rule to designate perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) as CERCLA hazardous substances.  Designation as a CERLA hazardous substances would have significant ramifications, including requiring the reporting of releases of reportable quantities of these substances and potentially resulting in the reopening of previously closed CERCLA sites.  These ramifications are discussed in a previous Corporate Environmental Lawyer blog.

OMB had previously designated the proposed rule as “other significant” which would not have required U.S. EPA to issue a regulatory impact analysis (RIA).  “Other significant” designations are reserved for rules expected to have costs or benefits less than $100 million annually.  In response to a number of comments, including comments from the U.S. Chamber of Commerce that estimated annual costs in excess of $700 million, the OMB has changed its designation to “economically significant” which will require U.S. EPA to conduct an RIA. 

Although it is very unlikely that the requirement to conduct an RIA will deter U.S. EPA in proceeding with its plans to designate PFOA and PFOS as CERCLA hazardous substances, it will require U.S. EPA to analyze whether its proposed rule is necessary and justified to achieve U.S. EPA’s goals and to clarify how its rule is the least burdensome and most cost-effective and efficient mechanism to achieve that goal.  OMB will review and comment on U.S. EPA’s RIA and may require that changes be made to U.S. EPA’s analysis. 

Again, the requirement to conduct the RIA is unlikely to derail U.S. EPA’s efforts to designate these chemicals as CERLA hazardous substances but it could jeopardize U.S. EPA’s summer 2023 deadline for finalizing its rule.  We will continue to track and report on PFAS related issues at the Corporate Environmental Lawyer.

By Steven M. Siros, Co-Chair, Environmental and Workplace Health & Safety Law Practice

U.S. EPA issued its long anticipated interim updated drinking water health advisories for perfluorooctanoic acid (PFOA) and perfluorooctane sulfonic acid (PFOS) that replace previous U.S. EPA health advisories for these per- and polyfluoroalkyl substances (PFAS) that had been set at 70 parts per trillion (ppt). The updated advisory levels, which U.S. EPA claims are based on new science and consider lifetime exposure, evidence that U.S. EPA believes that adverse health effects may occur with concentrations of PFOA or PFOS in water that are about as close to zero as you can get.  U.S. EPA notes that these interim health advisories will remain in place until EPA establishes a National Primary Drinking Water Regulation.

U.S. EPA has set a new health advisory level of 0.02 ppt for PFOS and 0.004 ppt for PFOA.  These new levels are dramatically lower than U.S. EPA's previous 70 ppt level that applied to both PFOA and PFOS.  U.S. EPA also set final advisories for hexafluoropropylene oxide dimer acid and its ammonium salts (also referred to as GenX) at 10 ppt and perfluorobutane sulfonic acid (PFBS) at 2,000 ppt.

Interestingly, U.S. EPA's health advisory levels for both PFOA and PFOS are set well below the current analytical detection limit of 4 ppt.   Responding to questions as to how the regulated community is supposed to demonstrate compliance with these health advisory levels, U.S. EPA acknowledged it was a "complicated matter" and U.S. EPA's advice was for water providers to test for PFAS using the currently analytical methodology that can test to 4 ppt.  

Environmental groups and the plaintiffs’ bar were quick to applaud the new health advisory levels, noting that any detectible levels of PFOA or PFOS represent unacceptable levels of these compounds in drinking water. The regulated community, on the other hand, blasted the new health advisory levels, claiming that the advisory levels ignored U.S. EPA’s commitment to embrace scientific integrity.

Regardless of which side of the fence that you find yourself, it is clear that U.S. EPA’s new PFAS health advisories will be relied upon by plaintiffs to file lawsuits in any instance where a detectible concentration of PFOA and/or PFOS is found in drinking water which in turn is likely to keep drinking water providers throughout the United States awake at night. 

We will continue to provide updates on U.S. EPA’s efforts to regulate PFAS at the Corporate Environmental Lawyer blog.

By Steven M. Siros, Co-Chair, Environmental and Workplace Health & Safety Law Practice

On May 18, 2022, U.S. EPA updated its Regional Screening Level tables to include five new per- and polyfluoroalkyl substances (PFAS).  The five new PFAS compounds added to the RSL tables are hexafluoropropylene oxide dimer acid and its ammonium salt (HFPO-DA – sometimes referred to as GenX chemicals), perfluorooctanesulfonic acid (PFOS), perfluorooctanoic acid (PFOA), perfluorononanoic acid (PFNA), and perfluorohexanesulfonic acid (PFHxS). U.S. EPA added its first PFAS substance, PFBS or perfluorobutanesulfonic acid, to the RSL tables in 2014 and updated that listing in 2021 when U.S. EPA released its updated toxicity assessment for PFBS.

The RSLs are risk-based screening values for residential and industrial soils and tap water that U.S. EPA relies upon to help determine if remediation is necessary.  Although U.S. EPA is quick to point out that the RSLs are not cleanup standards, regulators at both the state and federal levels rely on these RSLs to drive decision-making at contaminated sites.  The regulators also rely on these RSLs notwithstanding that U.S. EPA has yet to officially designate any PFAS as a CERCLA hazardous substance or RCRA hazardous waste (although efforts are ongoing on both fronts--CERCLA hazardous substances /  RCRA hazardous wastes).

U.S. EPA set the screening levels for PFOA, PFOS, PFNA, and PFHxS based on the Minimal Risk Levels from the Agency for Toxic Substances and Disease Registry’s toxicological profiles.  The screening level for HFPO-DA was set based on a final, peer-reviewed toxicity value.  For example, the screening level for PFOS is set at 38 parts per trillion for tap water and 1.6 parts per million for industrial soils and the screening level for PFOA is set at 60 parts per trillion for tap water and 2.5 parts per million for industrial soils   

As we await further U.S. EPA action with respect to regulating PFAS under RCRA and CERCLA, it is interesting to note that U.S. EPA is currently engaged in a significant information gathering exercise related to historical PFAS use.  Relying on its authority under CERCLA Section 104(e), U.S. EPA has recently issued scores of information requests seeking information regarding facilities’ past PFAS uses and practices.  The use of these information requests is consistent with the statements in U.S. EPA’s 2021 PFAS Roadmap where U.S. EPA indicated that it intended to rely on its various enforcement tools to identify and address PFAS releases. 

We will continue to provide timely updates on PFAS-related issues at the Corporate Environmental Lawyer blog. 

By Steven M. Siros, Co-Chair, Environmental and Workplace Health & Safety Law Practice

On April 21^st, Vermont Governor Phil Scott signed into law Senate Bill 113 that provides a cause of action for medical monitoring for individuals exposed to toxic chemicals.  The new law specifically provides persons without a present injury or disease with a cause of action for medical monitoring if the following conditions are demonstrated by a preponderance of the evidence:

• Exposure to a toxic substance at a rate greater than the general population;
• The exposure is a result of tortious conduct of the defendant;
• As a result of the exposure, plaintiff has suffered an increased risk of contracting a serious disease;
• The increased risk makes it medically necessary for plaintiff to undergo periodic medical examinations different from that prescribed for the general population; and
• Monitoring procedures exist that are reasonable in cost and safe for use.

The bill also provides for an award of attorneys’ fees and other litigation costs. 

The new law comes on the heels of a Vermont federal court's approval of a $34 million dollar class action settlement relating to alleged PFAS exposures that included a $6 million dollar medical monitoring fund. 

With its new law, Vermont joins Arizona, California, the District of Columbia, Florida, Massachusetts, Missouri, New Jersey, Ohio, Pennsylvania, Utah and West Virginia as states that specifically allow lawsuits seeking reimbursement for medical monitoring costs in the absence of present injury or disease.   However, unlike these other states where the right to medical monitoring is a right recognized by the courts, Vermont is one of first states in the nation to provide that right via statute.  Other states may well follow Vermont’s lead and there have been ongoing albeit unsuccessful efforts to create a federal cause of action for medical monitoring for exposure to certain toxic chemicals at the federal level.

We will continue to provide updates on federal and state efforts to codify the ability to bring claims seeking medical monitoring relief at the Corporate Environmental Lawyer blog.   

By Steven M. Siros, Co-Chair, Environmental and Workplace Health & Safety Law Practice

On the 60^th anniversary of the publication of Rachel Carlson’s groundbreaking book “Silent Spring”, the world continues to struggle to manage the human health and environmental risks associated with newly discovered emerging contaminants.  Silent Spring focused on the challenges associated with managing the risks associated with pesticides (and more specifically DDT), and even today, many of the largest personal injury verdicts are associated with alleged exposure to pesticides. 

Over the many years since Silent Spring, numerous contaminants have moved through the emerging contaminant life cycle, including asbestos, dioxins, PCBs, MTBE, BPA, 1,4-dioxane, and most recently, per- and polyfluoroalkyl substances (PFAS) (although PFAS seems stuck in the middle of the life cycle).      

The life cycle journey of emerging contaminants has been influenced significantly by our improved ability to understand the potential impacts of these emerging contaminants on human health and the environment.  As new contaminants are identified, resources are devoted to better understanding the potential environmental and health risks associated with these contaminants and regulations generally evolve to mitigate identified risks.  In response to increased regulatory pressure, industry’s use of chemicals evolves and the risks are mitigated.  Of course, industry’s use of these chemicals also evolves and is influenced by lawsuits when the regulations and/or the enforcement of the regulations lags.  

In addition to improved understanding of the risks posed by some of these emerging contaminants, the fact that we are able to measure smaller and smaller quantities of these contaminants also impacts the life-cycle journey of these emerging contaminants.  When I started practicing environmental law in the dark ages, contaminants in soil and groundwater were measured in parts per thousand.  As science evolved to detect lower and lower levels, regulatory levels moved from parts per million to parts per billion, and then parts per trillion, and PCBs are now regulated in parts per quadrillion.   As detection levels drop, the number of new emerging contaminants will increase and the life-cycle journey for each of these contaminants begins.  

A lot can be said for the progress that has been made since the summer of 1962.  Although some will argue it should still be faster, the time from discovery of the contaminant to identification of risks and regulation of these identified risks has greatly improved since the 1960s.  This is due in part to the fact society has a much lower tolerance for risks posed by emerging contaminants and is much quicker to demand a response from the regulators now than was the case in the 1960s when environmental laws in the United States were in their infancy. A reformed TSCA is better situated to address both environmental and health and safety impacts of chemicals (both newly manufactured chemicals and new chemical uses).   U.S. EPA, working in collaboration with manufacturers, implemented a global stewardship program to eliminate the manufacture and import of long-chain PFAS compounds.  In October 2021, U.S. EPA announced its PFAS Strategic Roadmap intended to implement a whole-of-agency approach to addressing PFAS.

As our understanding of risks evolves and our detection levels drop, it is inevitable that we will continue to identify new emerging contaminants that need to be regulated.  However, I think Rachel Carlson would be proud of the progress we have made and continue to make to ensure that the world is a safer place for everyone. 

By Steven M. Siros, Co-Chair, Environmental and Workplace Health & Safety Law Practice

On April 8, 2022, U.S. EPA added the industrial solvent 1-bromopropane (1-BP) to its list of CERCLA hazardous substances; this listing was triggered by U.S. EPA’s decision to add 1-BP to the Clean Air Act’s list of hazardous air pollutants in January 2022. The addition of 1-BP to the Clean Air Act’s list of hazardous air pollutants may have come as a bit of a surprise since U.S. EPA hasn’t added a new pollutant to the hazardous air pollutant list since the list was originally promulgated in 1990. However, once on the Clean Air Act list of hazardous air pollutants, the pollutant automatically falls with the CERCLA definition of “hazardous substances”. In addition to adding 1-BP to the list of hazardous substances in Table 302.4 in the Code of Federal Regulations, U.S. EPA set a CERCLA reportable quantity for 1-BP at one pound (the CERCLA statutory default).

The manner in which U.S. EPA treats 1-BP at CERCLA sites may be illustrative as to how U.S. EPA will treat PFOS and PFOA, two PFAS compounds that are currently under consideration for listing as CERCLA hazardous substances. Will U.S. EPA add 1-BP to the CERCLA required analyte list at all Superfund sites or will U.S. EPA adopt a more selective approach by relying on Toxics Release Inventory (TRI) data to identify nearby sites or manufacturing facilities that may have used the industrial solvent? The more likely scenario is that U.S. EPA will utilize some screening criteria to determine whether to sample for 1-BP but how wide of a  1-BP net that U.S. EPA decides to cast remains to be seen.

1-BP is also a volatile substance so U.S. EPA could also rely on the new listing to reopen and investigate sites for potential vapor intrusion concerns. However, it is unlikely that a site would be reopened solely on the basis of 1-BP vapor intrusion risks.

We will continue to track how U.S. EPA elects to address 1-BP at Superfund sites in an effort to gain insight as to how U.S. EPA may approach future hazardous substance designations at the Corporate Environmental Lawyer.

By Steven M. Siros, Co-Chair, Environmental and Workplace Health & Safety Law Practice

On March 22, 2022, U.S. EPA released a new web tool designed to ensure that information regarding environmental violations and enforcement actions is more readily available to the public. The new tool, called ECHO Notify, allows users to sign up for weekly emails when new information is available with respect to violations of environmental statutes or enforcement actions in a specific geographic area or with respect to a particular facility. 

ECHO Notify provides information on both state and federal enforcement and compliance activities under the following programs: Clean Air Act (stationary sources), Clean Water Act (point sources), Resource Conservation and Recovery Act (hazardous waste handlers), and Safe Drinking Water Act (public water system). The tool provides U.S. EPA-specific enforcement-related information with respect to other environmental statutes. 

In a press release that accompanied the release of the new tool, U.S. EPA Administrator Michael Regan stated that “EPA is committed to empowering communities with the information they need to understand and make informed decisions about their health and environment.” Administrator Regan went on to state “EPA has developed ECHO Notify so that finding updates on environmental enforcement and compliance activities is as easy as checking your email.” 

This new tool is another example of U.S. EPA’s continued focus on environmental justice communities and its desire to ensure that information regarding environmental compliance and enforcement activities is readily available to those communities. We will continue to provide updates regarding U.S. EPA initiatives at the Corporate Environmental Lawyer.

By Steven M. Siros, Co-Chair, Environmental and Workplace Health & Safety Law Practice

In connection with the release of its 2020 Toxics Release Inventory (TRI) National Analysis that evidenced a 10% decline in environmental releases of TRI chemicals between 2019 and 2020, U.S. EPA announced that it intends to initiate a rulemaking that will, among other things, remove the de minimis exemption for reporting the 172 per- and polyfluoroalkyl substances (PFAS) that were added to TRI by the 2020 National Defense Authorization Act. 

The TRI analysis report noted that 38 facilities reported managing 800,000 pounds of PFAS in 2020 but only 9,000 pounds of PFAS were reported as having been released. In response to what U.S. EPA claims to be a “seemingly limited scope of PFAS reporting”, U.S. EPA stated that it intends to “use existing data to generate lists of potential productions and recipients of PFAS waste, and has contacted facilities with potential reporting errors, as well as those that were expected to report but did not.” In addition, U.S. EPA claims that “the elimination of the de minimis exemption will result in a more complete picture of [PFAS] releases and other waste management quantities for these chemicals."

The de minimis exemption, which allows covered facilities to disregard certain minimal levels of listed toxic chemicals in mixtures or trade name products, has been strongly criticized by a number of environmental groups. The de minimis level for perfluorooctanoic acid is 0.1% and for all other TRI-listed PFAS is 1.0%. Litigation is currently pending in the U.S. District Court for the District of Columbia challenging U.S. EPA’s inclusion of the de minimis PFAS reporting threshold and this rulemaking may be an effort by U.S. EPA to respond to that litigation. 

We will continue to provide updates on U.S. EPA’s efforts to strip the de minimis TRI reporting exemption for PFAS as well as other PFAS-related issues on the Corporate Environmental Lawyer blog.

By Steven M. Siros, Co-Chair, Environmental and Workplace Health & Safety Law Practice

In what could portend significant risk to the regulated community, a recent “overfiling” by U.S. EPA in connection with a Clean Air Act (CAA) settlement between the Louisiana Department of Environmental Quality (LDEQ) and a steel plant should at a minimum cause the regulated community to be cautious when entering into settlement agreements with state regulators. On January 24, 2022, U.S. EPA Region 6 filed a Notice of Violation (NOV) alleging that a steel plant in Louisiana was emitting excess hydrogen sulfide, sulfuric acid mist and sulfur dioxide in violation of the plant’s CAA Title V permit. 

Back in October 2021, the Tulane Environmental Clinic had filed a formal request that U.S. EPA exercise its overfiling and supervisory authority pursuant to 42 U.S.C. § 7413(a)(a), (b), and (d) on the basis that the LDEQ settlement agreement imposed insufficient penalties and mitigation measures to ensure future compliance. It is interesting to note that the U.S. EPA NOV does not specifically reference the LDEQ settlement nor directly challenge its provisions. Moreover, the three pollutants identified in the NOV were not specifically called out in the LDEQ settlement, and, in fact, hydrogen sulfide and sulfuric acid mist are not currently part of the plant’s Title V permit.

However, it would be naïve to believe that U.S. EPA’s NOV is unrelated to the request filed by the Tulane Environmental Law Clinic. In fact, U.S. EPA held a number of meetings with the Tulane Environmental Law Clinic and other environmental groups following the overfiling request. U.S. EPA’s decision to overfile may be an indication of more aggressive enforcement oversight over state regulatory agencies, especially in situations involving vulnerable communities. As such, when evaluating whether to enter into settlements with state regulatory entities to address compliance issues with federal environmental statutes, companies should carefully consider the possibility of U.S. EPA overfiling, especially in situations where objections to the settlement have been raised by environmental groups, or in circumstances involving vulnerable communities.   

We will continue to provide updates on U.S. EPA enforcement trends on the Corporate Environmental Lawyer.

By Steven M. Siros, Co-Chair, Environmental and Workplace Health & Safety Law Practice

On January 10, 2022, U.S. EPA forwarded to the White House Office of Management and Budget (OMB) a proposed rule that seeks to designate perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) as “hazardous substances” under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA).  Although not unexpected since this was of the key elements of U.S. EPA’s PFAS Strategic Roadmap, U.S. EPA’s proposed rule is unique in that it represents one of the first times that U.S. EPA has by rule sought to designate a chemical as a CERCLA hazardous substance.  U.S. EPA's actions in sending the proposed rule to OMB may also be foreshadowing for a similar effort to designate PFOA and PFOS as "hazardous wastes" under the Resource Conservation and Recovery Act (RCRA) which would subject these substances to RCRA's cradle to grave regulatory scheme.     

The effect of listing PFOA and PFOS as CERCLA “hazardous substances” is significant for the following reasons:  

• New Sites: By designating PFOA and PFOS as CERCLA “hazardous substances”, due to the ubiquitous nature of these contaminants in the environment, hundreds of sites could become CERCLA Superfund sites. For example, PFAS chemicals can be found in the soil and groundwater at sites that historically used firefighting foams, including airports, refineries, and military installations. It is also a contaminant of concern at manufacturing operations associated with cookware, stain-resistant clothing, and various packaging products. Finally, it may be a concern at municipal landfills and wastewater treatment facilities. There may also be trickle-down effects at the state level since many states automatically include federally-designated substances in the state definition of hazardous substances.  

• Existing/Closed Sites: Moreover, at existing Superfund sites (including sites where a final remedy has been selected and is being  implemented), U.S. EPA can require that the sites be investigated for PFOA and PFOS.  If found, U.S. EPA can require that existing remedial strategies be modified to address these contaminants in the soil or groundwater.  Similarly, even at sites where remedial measures have been completed, U.S. EPA could still seek to reopen the sites and require that these newly designated hazardous substances be remediated.  

• Cost-Recovery Claims:  Designation of PFOA and PFOS as CERCLA hazardous substances would open the door for both U.S. EPA and private-party PRPs to bring CERCLA cost recovery and/or contribution claims to pay for the costs to investigate and remediate these chemicals. In light of the increased scrutiny of these compounds in drinking water supplies, one could expect numerous CERCLA cost-recovery lawsuits by drinking water providers to recover the costs to treat public drinking water system. 

• Reporting Requirements: Designation as a CERCLA hazardous substance also triggers release reporting under CERCLA. CERCLA § 103 (42 U.S.C.  § 9603) requires that releases of “reportable quantities” (RQ) of CERCLA hazardous substances be reported to the National Response Center. Until such time as U.S. EPA promulgates a specific RQ  for PFOA and PFOS, the default RQ for these chemicals will be one pound.  Although many states are moving towards banning the use of fire-fighting foam that contains per- and polyfluoroalkyl substances, if PFOA and/or PFOS are designated as CERCLA "hazardous substances", it is likely that any use of fire-fighting foam containing these substances would trigger CERCLA release reporting.    

Once U.S. EPA receives the review back from OMB  and publishes the proposed rule for comment in the Federal Register, U.S.EPA can expect to receive robust comments both against and in favor of the designation.  We will continue to follow U.S. EPA’s efforts to designate PFOA and PFOS as CERCLA “hazardous substances” at the Corporate Environmental Lawyer blog.