Authors
Todd C. Fracassi, Partner, Pepper Hamilton
Mitchell L. Guc, Associate, Pepper Hamilton
Andrea L. Rimer, Partner, Troutman Sanders
Randy E. Brogdon, Partner, Troutman Sanders

On April 10, the U.S. Environmental Protection Agency’s (EPA’s) Office of Land and Emergency Management (OLEM) and Office of Enforcement and Compliance Assurance (OECA) jointly released a memorandum to all EPA Regional Administrators regarding the suspension, reduction or continuation of on-site cleanup activity in the wake of the COVID-19 pandemic. The memorandum supplements earlier guidance released on March 19 outlining OLEM’s management considerations and posture in response to COVID-19, which is included as an attachment to the April 10 guidance.


Continue Reading EPA Issues Guidance for On-Site Cleanup Activity Suspension, Reduction or Continuation in Response to COVID-19

Today, U.S. Environmental Protection Agency (EPA) Assistant Administrator of EPA’s Office of Enforcement and Compliance Assurance (OECA) Susan Bodine issued guidance regarding OECA enforcement discretion in the wake of the coronavirus (COVID-19) COVID-19 pandemic. EPA intends to focus its resources largely on situations that may create an acute risk or imminent threat to public health or the environment. The guidance, which is retroactively effective to March 13, does not have an end date but EPA commits to reviewing the policy regularly and to providing a seven day notice of its termination on OECA’s guidance page.

Continue Reading EPA Issues Enforcement Discretion Guidance to Address Compliance in Wake of COVID-19

As the coronavirus (COVID-19) outbreak continues across the U.S., it is important for companies to proactively address the potential disruptions to their compliance programs. Environmental compliance is often a boots-on-the-ground activity; but what happens when those boots are at home, can’t travel as needed, or can’t observe operations at the plant level?  Unprecedented staffing and operational issues associated with the coronavirus pandemic have the potential to cause significant gaps in environmental compliance programs. Staying ahead of those gaps is key to weathering these compliance challenges. Below we discuss some recommended strategies to maintain compliance.

Continue Reading Environmental Compliance in the Wake of the Coronavirus

On March 9, 2020, EPA published its final “risk and technology review” for the standards it adopted in 2004 to regulate emissions of hazardous air pollutant (HAP) from natural gas-fired combustion turbines. Like most other such reviews, EPA confirmed that the risks presented by HAP emissions from the source category are acceptable with an ample margin of safety. EPA also concluded that there are no new cost-effective controls for reducing those emissions.

Continue Reading EPA Review of Gas Turbines Confirms Ample Margin of Safety, Even Without Controls

On March 3, 2020, the United States Environmental Protection Agency (EPA) published its most recent proposed revisions to the federal Coal Combustion Residuals (CCR) rule. The proposal, which EPA has coined “Part B” to its “Holistic Approach to Closure,” is a follow-up to the Part A proposal, which EPA published in November 2019. Part of a flurry of CCR-related activity, the Part B proposal comes just days after EPA issued its proposed federal CCR permit program.

As we previously reported, the purpose of EPA’s Part A proposal was to align the Agency’s regulations with the D.C. Circuit Court of Appeals’ August 2018 decision in USWAG v. EPA, 901 F.3d 414 (D.C. Circuit 2018). To that end, Part A proposed to (1) classify clay-lined surface impoundments as unlined, and (2) require all unlined surface impoundments to close.


Continue Reading EPA Issues Part B to its Holistic Approach to CCR Unit Closure Proposal

Last week, EPA fulfilled a promise to reverse the expansion of its refrigerant management program during the Obama Administration. That expansion, which was finalized in 2016 and became effective in 2019, EPA extended the regulations for ozone depleting substances (ODS) to non-ODS “substitute” refrigerants, with the intent of reducing emissions of substitutes that consist of greenhouse gases (GHGs), including some with very high global warming potentials. Last week’s final rule returns the refrigerant management program to its original focus, at least with respect to appliance leak repair requirements, although some regulatory requirements for non-ODS substitute refrigerants will remain in place.

Continue Reading EPA Finalizes Rule to Limit Refrigerant Program to Ozone Depleting Substances

New federal reporting requirements for per- and polyfluoroalkyl substances (PFAS) went into effect on January 1, 2020. The National Defense Authorization Act for FY 2020 (NDAA), signed into law on December 20, 2019, required EPA to add certain PFAS to the federal Toxics Release Inventory (TRI) list of reportable chemicals.

The NDAA identified fourteen specific PFAS chemicals for addition to the TRI list, and directed EPA to add other substances that met two criteria: (1) they were subject to a significant new use rule (SNUR) under the Toxic Substances Control Act (TSCA) on or before December 20, 2019, and (2) they were identified as active in commerce on the TSCA Inventory that was published in February 2019. Among the new additions are some of the best-known and most-studied substances, including PFOA (perfluorooctanoic acid), PFOS (perfluorooctane sulfonate), and GenX chemicals (including hexafluoropropylene oxide dimer acid).


Continue Reading Toxic Release Inventory Expanded to Include PFAS, with 160 New Reportable Chemicals and Counting

On January 27, EPA published a preliminary list of manufacturers that are potentially subject to a fee obligation under the Toxic Substances Control Act (“TSCA”). This is a follow-up notice to EPA’s designation of 20 additional substances as High Priority Substances in December, for which the agency will now go through a risk evaluation, including:

Continue Reading EPA Publishes Preliminary List of Manufacturers Subject to TSCA Risk Evaluation Fees

Plaintiffs across the country have filed suit seeking relief for their exposure to per– and polyfluoroalkyl substances (“PFAS”), a group of man-made chemicals that the plaintiffs hope to link to a variety of adverse health effects, including cancer. While the health effects attributable to these chemicals are under study by state and federal regulators, decisionmakers have been slow to implement rules and regulations that provide those who have been exposed to these chemicals with a clear path for recovery. While regulators grapple with these emerging contaminants, courts are weighing in on whether those injured by exposure to PFAS are entitled to relief under the existing regulatory landscape.

Continue Reading Court Dismisses PFOA and PFOS Contamination Claim Amidst Changing Regulatory Landscape