Insights

In a November 15, 2021 Federal Register notice, EPA described a new policy under which the Agency will use “discretionary authority” to require reporting by facilities that are not subject to the Toxics Release Inventory (TRI) program. TRI reporting is governed by Section 313 of the Emergency Planning and Community Right-to-Know Act (EPCRA), which requires facilities primarily in the manufacturing sector that handle threshold quantities of listed toxic chemicals to estimate and report the release of those chemicals into the environment “to help communities plan for chemical emergencies.” EPA has never before invoked its “discretionary authority” under Section 313, but is doing so now as part of its broader environmental justice initiative. In brief, based on application of “environmental justice screening” tools, the Agency is concerned that certain communities may be exposed to heretofore unreported releases of the carcinogen ethylene oxide (EtO) from facilities that are not otherwise subject to Section 313. Although EPA’s current exercise of discretionary authority under Section 313 appears to be limited to EtO, it is foreseeable that EPA could broaden its use of this discretionary authority to advance the Agency’s environmental justice initiative.

On February 27, 2021, the Interagency Working Group on Social Cost of Greenhouse Gases (Working Group) published interim values for the Social Cost of Carbon (S-CO2), Social Cost of Nitrous Oxide (S-N2O) and Social Cost of Methane (S-CH4) (collectively referred to as the Social Costs of Greenhouse Gases (S-GHG)). As we predicted in our prior client alert, the Working Group reinstated the values that had been established for these parameters immediately before the Trump Administration disbanded the Working Group in 2017. To that end, for 2021 the Working Group set S-CO2 at $51 a ton, S-N2O at $18000 a ton and S-CH4 at $1500 based on a 3% discount rate. These rates will replace the Trump Administration’s calculation of the Social Cost of Carbon, which included values as low as $1 based on a 7% discount rate. The new figure will be used on an interim basis while a Working Group readies the final values, which are expected in early 2022.

Potentially the most consequential, yet least noticed, part of President Biden’s Day 1 Executive Order on Protecting Public Health and the Environment and Restoring Science to Tackle Climate Change (Jan. 20, 2021) (“EO 13990”) is the directive to re-establish the Interagency Working Group on the Social Cost of Greenhouse Gases (“Working Group”), which President Trump disbanded during his administration.  See E.O. 13990, Sec. 5.  One of the Working Group’s primary mandates is to calculate what is referred to as the “Social Cost of Carbon,” which measures the cost to society of emitting one additional ton of carbon dioxide into the atmosphere.  These include the costs associated with sea level rise and extreme weather events, and adverse effects on water and agricultural resources and human health.  Section 5 directs the Working Group to publish an interim Social Cost of Carbon within 30 days of the date of the Executive Order, and to publish a final value by January 2022.  (The Executive Order also directs the Working Group to publish Social Costs for two other global warming chemicals, i.e., nitrous oxide and methane.)  The Working Group has not yet published the interim value, but it doesn’t take a clairvoyant to predict at least interim reinstatement of the values used by the Obama Administration.  One signal is the Council on Environmental Quality’s decision to rescind the Trump Administration’s “Draft National Environmental Policy Act Guidance on Consideration of Greenhouse Gas Emissions” and directive that until a replacement is adopted “agencies should consider all available tools and resources in assessing GHG emissions and climate change effects of their proposed actions, including, as appropriate and relevant, the 2016 GHG Guidance.”  (86 Fed. Reg. 10252.)

On April 20, 2020, the Supreme Court of the United States issued its opinion in Atlantic Richfield Co. v. Christian, et al., allowing Montana landowners to pursue state law claims for damages within an EPA-managed Superfund site, but requiring EPA approval of any remedial work beyond the originally selected remedy. Many commentators and legal scholars have suggested the case opens a veritable Pandora’s Box of new litigation. We submit that the consequences will likely be less dramatic, in part because of the unusual legal remedy under Montana law for a landowner whose property becomes contaminated by another party is not widely available outside Montana.

On April 10, 2020, EPA released an interim guidance document on response field activities under CERCLA, RCRA, and other EPA response programs during the COVID-19 pandemic. Entitled “Interim Guidance on Site Field Work Decisions Due to Impacts of COVID-19,” the policy reflects a careful balance between the need to prevent exposure to environmental threats (such as a spreading groundwater plume that could contaminate drinking water supplies) and the need to avoid unnecessary risks associated with exposure to the coronavirus (such as routine sampling that could be postponed). The below Q&A addresses key aspects of the new interim guidance.

Many businesses face mounting disruption and, in some cases, temporary shutdown as a consequence of the ongoing coronavirus (COVID-19) pandemic. As owners and operators confront these challenges, they face the added challenge of continuing to satisfy applicable federal, state, and local environmental laws and regulations. Unprecedented obstacles to maintaining routine compliance include, for example, the lack of staff to collect water samples, the inability to obtain physical signatures of documents such as air permits and compliance reports, and difficulty constructing, repairing, upgrading, and maintaining emissions controls and monitoring systems because of disruptions to the supply chain or work force.

The Coronavirus Aid, Relief, and Economic Security Act (CARES Act), a $2 trillion stimulus package, was approved by the U.S. House of Representatives by a voice vote on March 27, 2020 despite opposition from certain Republican members who were seeking a roll call vote. The package was approved unanimously by the U.S. Senate with a vote of 96-0 on March 25, 2020. It is the third coronavirus emergency response bill considered this month in Congress, which passed the Coronavirus Preparedness and Response Supplemental Appropriations Act on March 6 and the Families First Coronavirus Response Act on March 18.

On March 12, 2020, the Environment and Natural Resources Division (ENRD) of the Department of Justice (DOJ) formally terminated its policy of permitting companies to perform environmentally beneficial projects – so-called “supplemental environmental projects” (SEPs) – in lieu of paying civil penalties for settlement of violations of federal environmental laws, according to a memo from ENRD Assistant Attorney General Jeffrey Bossert Clark. 

Industrial facilities must contend with yet another federal chemical release reporting requirement – this one requires reporting of releases to the Chemical Safety and Hazard Investigation Board (the CSB), an independent agency that was established in 1990. Under the new “Accidental Release Reporting Rule,” the CSB is requiring facilities to report accidental chemical releases, which result in a fatality, serious injury, or substantial property damage. The purpose of this report is to give the CSB the information it needs to decide whether to initiate an investigation of the accident, and, ultimately, to provide a public account. The Rule becomes effective 30 days after the date of publication in the Federal Register, which is scheduled for February 21. So covered facilities must quickly get their arms around this new reporting program and integrate it into their compliance programs.

The federal government is imposing one of the first environmental requirements for per- and polyfluoroalkyl substances (PFAS), and industry must plan accordingly.

On October 9, 2019, the president issued two Executive Orders (EOs), which seek to reduce reliance on informal “guidance” issued by federal agencies, including EPA and other agencies that regulate in the environmental or natural resources sphere. The intent behind these EOs is to discourage and scale back the use of guidance by agencies to achieve their regulatory aims. The practical impact of these EOs, however, remains to be seen, given that they include several substantial exceptions and allow for agencies to carve out potentially broad categories of action from their requirements.

The Vermont Attorney General announced last week that he has initiated lawsuits against makers of per- and polyfluoroalkyl substances (PFAS) (State of Vermont v. 3M Co., et al., Chittenden Cty.), and makers of firefighting foams that contain PFAS (State of Vermont v. 3M Co., et al., Chittenden Cty.).  These new cases, the latest in a series of state-government common-law and statutory liability actions against PFAS manufacturers and users, continues a developing trend of state attorneys general using state tort law aggressively against corporate defendants, usually with the assistance, if not the encouragement, of private contingency-fee law firms.

On June 10, in a case that could have a significant impact on CERCLA cleanup efforts across the country, the U.S. Supreme Court granted certiorari in Atlantic Richfield Company v. Christian, a Montana Supreme Court case involving state law claims related to environmental contamination at a Superfund site. By agreeing to hear the case, the Court appears set to resolve the conflict between the Montana Supreme Court and various federal circuits over whether CERCLA preempts or bars private landowners from bringing common law claims for environmental remediation of sites undergoing cleanup under CERCLA. Specifically, the Court will consider:

In a July 7, 2017 opinion, the U.S. Court of Appeals for the District of Columbia vacated portions of the U.S. Environmental Protection Agency’s 2015 rule on the definition of solid waste (2015 Rule), which the Agency promulgated under the Nation’s hazardous waste law – the Resource Conservation and Recovery Act (RCRA). See American Petroleum Institute v. EPA, No. 09-1038 (D.C. Cir. 2017) (API). There are many significant rulings in the D.C. Circuit’s decision. This client alert, however, focuses on several key rulings that we believe make it simpler to recycle hazardous secondary materials.

In a Federal Register notice that is scheduled to be published tomorrow, EPA will announce a delay in the effective date of the new nano reporting rule until August 14, 2017. A pre-publication copy of the notice, available here, indicates that the delay is intended to allow EPA to issue interpretive guidance on the rule before the new reporting requirements take effect. The lack of interpretive guidance had previously been criticized by various stakeholders.