Environment & Energy Insights

U.S. EPA Fast-Tracking Implementation of Environmental Justice Initiatives

Posted by Jeffrey Karp on 4/13/21 3:23 PM

By Jeffrey Karp, Senior Counsel and Edward Mahaffey, Law Clerk

A cornerstone of the Biden Administration is environmental justice, which EPA defines as "the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation and enforcement of environmental laws, regulations and policies."

On April 7, EPA Administrator Michael Regan sent an email to all agency staff discussing the agency’s renewed commitment to environmental justice, and included four specific directives to all EPA offices. The first directive is stronger "enforcement of violations of cornerstone environmental statutes and civil rights laws in communities overburdened by pollution." (The memo does not identify what Mr. Regan considers "cornerstone environmental statutes" or which civil rights laws over which the EPA has enforcement authority.) The second is immediate incorporation of environmental justice considerations into the work of all EPA offices, "including assessing impacts to pollution-burdened, underserved, and Tribal communities in regulatory development processes and considering regulatory options to maximize benefits to those communities." The third directive involves "early and more frequent engagement with pollution-burdened and underserved communities affected by agency" actions, including regular consultation with Tribal officials. Finally, the email states that EPA offices should "consider and prioritize direct and indirect benefits to underserved communities in the development of grant applications and in making grant award decisions, to the extent allowed by law." Regan also noted that he and the rest of EPA’s senior leadership would establish more detailed plans and "measures of accountability" for environmental justice over the next few months.

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Topics: Environmental Protection Agency, Environmental Law, Environmental Justice

Supreme Court to Again Consider the Interplay Between a CERCLA Cost Recovery and Contribution Action

Posted by Jeffrey Karp on 4/2/21 9:24 AM

Written by Jeffrey Karp, Environment, Energy and Natural Resources Group Leader, and Edward Mahaffey, law clerk.

Liability for clean-up of hazardous substances pursuant to the Comprehensive Response, Compensation and Liability Act of 1980 ("CERCLA," "Act" or "Superfund") can be extremely costly, amounting to hundreds of millions of dollars. Under CERCLA’s broad liability net, the United States Environmental Protection Agency ("EPA") can obtain reimbursement of response costs from or require potentially responsible parties ("PRPs")[1] to conduct response actions to address releases or threatened releases of hazardous substances from a facility. See 42 U.S.C. § 9607(a); 42 U.S.C. § 9601(9)(B).

Although CERCLA does not specify the liability standard in government cost recovery cases under Section 107, most courts have accepted the application of strict, joint and several liability for PRPs who cannot prove divisibility of the harm they caused from the total harm. See O’Neil v. Picillo, 883 F.2d 176, 178-79 (1st Cir. 1989) ("The rule adopted by the majority of courts, and the one we adopt, is based on the Restatement (Second) of Torts: damages should be apportioned only if the defendant can demonstrate that the harm is divisible."). In Burlington Northern & Santa Fe Railway Co. v. United States, 556 U.S. 599 (2009), the U.S. Supreme Court recognized apportionment as a judicially created affirmative defense to joint and several liability under CERCLA. It instructed the lower courts to follow the Restatement (Second) of Torts § 433A in determining whether harm is divisible in any specific case, which occurs when "there is a reasonable basis for determining the contribution of each cause to a single harm." 556 U.S. at 614. The burden of proof, however, is placed on defendants to establish that such a reasonable basis exists. See Restatement (Second) of Torts § 433B(2); Burlington Northern at 617 (there must be "facts contained in the record reasonably support[ing] the apportionment of liability."). The practical effect of placing the burden on defendants to prove divisibility is that responsible parties rarely escape joint and several liability, which means that any one PRP may be held responsible for the entire cost of a cleanup. See Guam v. U.S., 950 F.3d 104, 107 (D.C. Cir. 2020).

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Topics: United States Supreme Court, Environmental Protection Agency, CERCLA

U.S. EPA's Interim Guidance on PFAS Destruction and Disposal Lacks Adequate Precision

Posted by Jeffrey Karp on 1/20/21 1:31 PM

Authors: Jeffrey Karp and Edward Mahaffey, Sullivan & Worcester LLP; Graham Ansell, PhD and Brett Winters, PhD, GSI Environmental, Inc.

Section 7361 of the National Defense Authorization Act ("NDAA") for Fiscal Year 2020 requires the US Environmental Protection Agency (EPA) to "publish interim guidance on the destruction and disposal of perfluoroalkyl and polyfluoroalkyl substances and materials containing perfluoroalkyl and polyfluoroalkyl substances," reflecting increasing concern about the human health risks posed by these substances, commonly known as PFAS. On December 18, 2020, the EPA issued the interim guidance document, on which it will accept public comments until February 22, 2021.[1] However, as discussed below, the guidance appears to be prematurely issued, given EPA’s uncertainty throughout in advising on the likely efficacy of various PFAS disposal and destruction methods.

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Topics: EPA, PFAS

Corporate Disclosures of Climate-Related Risks and Fulfilling Sustainability and Climate Commitments

Posted by Jeffrey Karp on 12/3/20 10:00 AM

By Jeffrey Karp, Senior Counsel and Edward Mahaffey, Law Clerk

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Topics: Climate change, Corporate Sustainability

PFAS in Firefighting Foam Has Contaminated Water Resources on Military Bases and in Surrounding Communities

Posted by Jeffrey Karp on 10/15/20 4:12 PM

Co-authored by Jeffrey Karp and Edward Mahaffey

Perfluorooctane sulfonate (PFOS) and perfluorooctanoic acid (PFOA) are found in firefighting foam used by the military since the 1970’s for training exercises and to extinguish liquid and gas fires. These compounds are part of a larger class of toxic chlorinated chemicals called per- and polyfluoroalkyl substances (PFAS). Similarly, airports and municipal fire departments have used the aqueous film forming foam (AFFF) for decades to extinguish fires caused by flammable liquids.[1]

Firefighting foams are divided mainly into two classes. Class A foams are used to fight wildfires and structural fires. Class B foams are used to extinguish fires caused by flammable liquids. While not all Class B fire extinguishing agents contain PFAS, all AFFF does, and AFFF has special characteristics that make it difficult to find adequate replacements. When mixed with water, AFFF produces an aqueous spreading film that extinguishes burning hydrocarbon fuel and prevents reignition by cutting off oxygen from the fuel source.[2]

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Topics: PFAS, Firefighting Foam, Military Bases

PFAS Update: August 2020

Posted by Jeffrey Karp on 8/5/20 5:56 PM

Co-authored by Edward Mahaffey and Jeffrey Karp

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Topics: PFAS

U.S. EPA’s COVID-19 Based Discretionary Civil Enforcement Policy and Guidance on Timing of Performing Field Work

Posted by Jeffrey Karp on 4/23/20 3:46 PM

The COVID-19 pandemic has disrupted many business and governmental activities, and environmental compliance is no exception. In recognition of the potentially negative impacts of the pandemic on stakeholders’ ability to meet environmental compliance and remediation obligations, the U.S. EPA has recently issued both (i) a Policy concerning the discretionary enforcement of civil violations of laws, regulations and permits, and (ii) a Guidance concerning the timing of field work for remedial investigations and cleanup activities under CERCLA as well as corrective measures under RCRA.

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Topics: EPA, COVID-19

Absence of Broad-Based Congressional or U.S. EPA Actions Limiting PFAS Exposure Likely to Engender Continued State Regulation

Posted by Jeffrey Karp on 1/3/20 5:04 PM

By Jeffrey M. Karp, Edward Mahaffey and Graham Ansell

Despite extensive negotiation, insufficient bipartisan support was garnered to obtain inclusion of robust PFAS provisions in Congressional year-end spending legislation. Initially, there was some expectation that U.S. EPA might be directed in the National Defense Authorization Act (NDAA) to establish maximum contaminant levels (MCLs) for per- and polyfluoroalkyl substances (PFAS) in drinking water, and/or to designate PFAS as hazardous substances under CERCLA, but those proposals were not included in the legislation. In the absence of a Congressional mandate or U.S. EPA regulatory action establishing enforceable clean-up standards, states concerned about the potential negative health effects of exposure to PFAS compounds have taken matters into their own hands. As discussed, to fill the federal government void, states have set MCLs for certain PFAS compounds in drinking water, required testing of water systems and publication of results, and established remediation requirements for certain PFAS compounds in groundwater and surface water.

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Topics: EPA, PFAS

PFAS Updates: Congressional and Federal Regulatory Developments

Posted by Jeffrey Karp on 11/19/19 9:31 AM

By Jeffrey M. Karp and Edward Mahaffey

This posting provides an update on PFAS developments involving federal legislative and regulatory activities.

Congress

On November 6, 2019, a panel of experts at a congressional briefing sponsored by the Endocrine Society and the NIH’s National Institute of Environmental Health Sciences warned that PFAS may contribute to obesity, osteoporosis, and thyroid dysfunction, while acknowledging that more study is needed of possible links.[1] The briefing reflected a continuing congressional interest in potential PFAS health impacts, as seen in the 13 PFAS-related bills approved by the US House of Representatives’ Subcommittee on Environment and Climate Change,[2] as well as the inclusion of funding for PFAS-related activities on military bases in House[3] and Senate[4] appropriation bills.

As of November 18, 2019, no further action has been taken on any of these bills.  However, at the request of members of Congress the Defense Department’s Inspector General agreed to examine the military’s use of PFAS in materials such as firefighting foam,[5] and to complete the investigation by January 2020.[6]

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Topics: Environmental Protection Agency, PFAS

Greenhouse Gas Quantification Under FERC’s Pipeline Certification Process

Posted by Jeffrey Karp on 7/30/19 11:43 AM

By  Jeffrey Karp and Maxwell Unterhalter

Since our last article discussing the way in which the Federal Energy Regulatory Commission ("FERC" or "the Commission") considers greenhouse gas (GHG) emissions and climate impacts in the pipeline certification process, the conflict has not abated. Presently, the Commission has just four members; a fifth member has not been appointed by the President since the death of Commissioner McIntyre on January 2, 2019.[1] With no nominee to replace the late Commissioner McIntyre, the remaining two Democratic and two Republican commissioners have stalemated over whether FERC is adequately fulfilling its National Environmental Policy Act (“NEPA”) responsibilities in evaluating certification applications for natural gas pipelines.[2] The lack of consensus among the four commissioners has slowed the certification of proposed pipeline projects, leading to cancellation of at least one application.[3]

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Topics: Greenhouse Gas Emissions, Natural Gas, Energy Projects, FERC

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The Environment & Energy Insights blog analyzes developments in the law, as well as provides updates and perspectives on trends and polices.

The material on this site is for general information only and is not legal advice. No liability is accepted for any loss or damage which may result from reliance on it. Always consult a qualified lawyer about a specific legal problem.

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