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.
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.
By Jeffrey M. Karp and Edward Mahaffey
This posting provides an update on PFAS developments involving federal legislative and regulatory activities.
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. 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, as well as the inclusion of funding for PFAS-related activities on military bases in House and Senate 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, and to complete the investigation by January 2020.
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. 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. The lack of consensus among the four commissioners has slowed the certification of proposed pipeline projects, leading to cancellation of at least one application.
Recently, we have addressed the evolving regulatory landscape for per- and poly-fluoroalkyl substances (PFAS), as the federal and state governments grapple with finding the best approach to handle PFAS releases from manufacturing facilities, fire and crash training areas, and industrial and municipal waste disposal sites into soil, groundwater, and drinking water systems. A growing awareness of PFAS persistence and the possible negative health effects at low levels in the environment also has resulted in an increasing number of lawsuits against manufacturers and distributors of PFAS and other potentially liable parties. This article discusses how scientific studies on PFAS toxicity and potential endangerment to human health and the environment have influenced such litigation.
By: Jeffrey Karp and Maxwell Unterhalter
Nearly two years following hurricanes Irma and Maria, challenges remain as Puerto Rico seeks to develop a cleaner and more resilient power grid. In November 2018, we discussed the evolving renewable energy situation in Puerto Rico as proposals for 100% renewable generation appeared stalled in its legislature. Half a year later, Puerto Rico has passed a new law that calls for implementing aggressive renewable energy goals.
Massachusetts Proposes New PFAS Regulations as States Tackle Contamination
As in previous postings, we discuss recent state regulatory initiatives aimed at addressing groundwater and drinking water contamination by per- and polyfluoroalkyl substances ("PFAS"). PFAS are a group of synthetic chemicals that have been used widely in consumer and industrial products since the 1940s. Major applications have included coatings for paper and cardboard packaging products, carpets, textiles with water and oil repellency, non-stick surfaces, and firefighting foams. Due to their chemical structure, PFAS stay in the environment for a long time and do not degrade easily. PFAS have been detected in air, surface water, groundwater, drinking water, and soil. They even have been found in grocery store items, such as meat, fish, dairy, and prepared chocolate-cake. The widespread use and persistence of PFAS in the environment, together with growing evidence that low-level exposure may lead to adverse health effects, has increased concerns about safe levels of human exposure to PFAS. In response, many more state and, to a lesser extent, federal initiatives have been undertaken to regulate PFAS. As discussed below, recently the Massachusetts Department of Environmental Protection (the "MassDEP") has proposed to regulate PFAS within the framework of the Commonwealth’s Massachusetts Contingency Plan.
EPA Steps into the Mix While States Continue Swift Action in Light of Potential Health Risks
By: Jeffrey Karp and Kevin Fink
In a prior posting, we noted the proliferation of state legislative and regulatory activity involving Per- and polyfluoroalkyl substances (PFAS), a class of man-made chemicals used for over 70 years in a variety of products, such as nonstick cookware, firefighting foam, waterproofing and stain-resistant coatings, and in industrial manufacturing. Measured concentrations of legacy PFAS chemicals are stable and do not degrade very rapidly in the environment. PFAS like perfluorooctanoic acid ("PFOA") and perfluorooctane sulfonate ("PFOS") in groundwater and drinking water sources have been associated as possible links to negative impacts on human health, including decreased fertility rates, increased risk of certain cancers and impaired immune system function.
By Jeffrey Karp and Kevin Fink
In a recent article posted by Manufacturing Today, we discussed the unexpected risks facing manufacturers of products containing Per- and polyfluoroalkyl substances (PFAS). PFAS are a class of more than 3,000 man-made chemicals that are receiving heightened public awareness due to concerns about their potential negative impact on human health and the environment.
In addition to the commencement of litigation and the promulgation of PFAS regulations in a number of states, two bills were introduced in the Senate during the last session of Congress that: (1) sought to “encourage” Federal - State cooperative agreements to address removal and remedial actions; and (2) to require the United States Geological Survey (“USGS”) to perform a nationwide survey of the extent of these ubiquitous contaminants.
By Jeffrey Karp and Kevin Fink
Among other responsibilities, the Federal Energy Regulatory Commission ("FERC" or "the Commission") approves and issues construction certificates for interstate gas pipelines and related infrastructure under section 7 of the Natural Gas Act ("NGA"). Section 7(c) of the NGA requires that any person seeking to construct or operate a facility for the transportation of natural gas in interstate commerce must obtain a certificate of public convenience and necessity from FERC. FERC’s 1999 Statement of Policy - Certification of New Interstate Natural Gas Pipeline Facilities - outlines the evaluation standard for issuing a certificate of public convenience and necessity. Once a certificate application is filed, the gating question is whether the project can go forward without subsidization by the pipeline’s existing customers. If that threshold requirement is met, FERC determines whether the applicant has sought to eliminate or minimize adverse effects on existing customers, existing pipelines in the market and their customers or landowners and communities affected by the route of the new pipeline. If the proposed project has no adverse effects, the Commission proceeds to a preliminary determination or a final order. However, if there are residual adverse effects - after efforts have been made to minimize them - FERC balances the evidence of public benefits achieved against the residual adverse effects in a economic test, and then proceeds to environmental and other reviews if the benefits outweigh the adverse effects.