EPA Incites Further Controversy Proposing to Designate Forever Chemicals Under CERCLA

While critics may say the federal government has been slow to react to PFAS, last week the EPA took its most aggressive stance — publishing its notice for a proposed federal rule to designate two specific PFAS compounds, PFOA and PFOS, as “hazardous substances” under the Comprehensive Environmental Response Compensation and Liability Act (CERCLA), and now the clock is ticking. 

Found in surface water, air, soil, and even more recently food packaging, PFOA and PFOS were used pervasively in American manufacturing beginning in the 1940s for their durability, heat/grease resistance, and waterproof nature, and quickly assumed the nomenclature “forever chemicals” because of their remarkable inability to decompose. 

When talking shop, lawyers, insurance carriers, and manufacturers alike have labeled PFAS the ‘emerging contaminant’ to watch out for …

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Key Corporate Climate Accountability Bill Fails to Pass in California

Despite California’s most recent, two-year legislative session ending on September 1 with a flurry of new bills aimed at fighting global warming getting passed, one noticeable bill failed to pass on the last day. Senator Scott Wiener’s S.B. 260, i.e., California’s Climate Corporate Accountability Act, died on the legislative floor by one vote. Co-authored by Senator Henry Stern, S.B. 260 would have been the nation’s first-ever mandatory requirement for large corporations to disclose their greenhouse emissions.

Had it been enacted, California’s legislation would have set …

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EPA Proposes to Designate PFOA and PFOS as Hazardous Substances under CERCLA

Friday of last week the U.S. Environmental Protection Agency (“EPA”) published a proposed rule that would designate perfluorooctanoic acid (“PFOA”) and perfluorooctanesulfonic acid (“PFOS”), including their salts and structural isomers, as hazardous substances under section 102(a) of the Comprehensive Environmental Response, Compensation, and Liability Act (commonly known as CERCLA). The designations, if finalized, could have direct and indirect impacts on a range of individuals and companies, as well as the federal government itself.

The five broad categories of entities potentially affected by this designation as …

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EPA Previews 2021 List of Toxic Release Inventory

On July 28, 2022, the Environmental protection Agency (“EPA”) released its preliminary 2021 Toxics Release Inventory (“TRI”).  The purpose of the TRI is to give the public critical information regarding chemical releases, waste management, and pollution prevention undertaken at both federal and industrial facilities in the United States.  

The TRI program was created by Congress in 1986 as part of the Emergency Planning and Community Right to Know Act.  Chemicals that are covered by the program include those that have adverse health or environmental …

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The Pendulum Swings Back Again on Clean Air

In June 1989, then-President George H. W. Bush proposed revisions to the Clean Air Act designed to reduce what were perceived as three of the largest threats to the environment at the time: toxic air emissions, acid rain, and urban air pollution.

More specifically, Section 112r of what became the Clean Air Act Amendments of 1990 required the EPA to publish guidance and regulations for chemical accident prevention by entities using compounds that posed the greatest risk of harm from accidental releases. These regulations were …

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New Law Provides Clean Energy Tax Credit Bonanza

The Inflation Reduction Act (IRA) that President Biden signed into law on August 16 ran, all told, about 725 pages. One of the more complex and—for businesses—interesting portions of this law involves its restructuring and expanding of clean-energy tax credits, which may provide opportunities for companies operating in and around the clean-energy area. 

The IRA increased the tax credits’ appeal by extending them at full value for 10 years; the credits only decline once power-sector carbon emissions fall to 75% of today’s levels. It also expanded the scope of these …

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EPA Renews Push for New ‘EtO’ Regulations and Outreach   

Following a study of 100 commercial sterilizer facilities, the U.S. Environmental Protection Agency announced on August 3 it would takes steps to inform communities throughout the country about the risks posed by ethylene oxide (EtO) emissions from 23 of specific sterilizer facilities.  

The agency further announced that, using data from the same study as well as ongoing critical EtO research, EPA will propose new regulations intended to protect public health from EtO emissions and protect workers at the facilities themselves, by the end of 2022 …

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Kids File Climate-Change Suit Against Their Home State, Alleging Betrayal 

Faced with back-to-back years of unprecedented flooding, wildfires, and soaring temperatures, sixteen teens and children from Montana, ages 2-18, are suing their home state in what may precipitate the next wave of climate-change litigation. 

With favorable rulings from a state judge and the Montana Supreme Court, the children’s lawsuit is on track to become the first such climate lawsuit to go to trial in the United States. It alleges that Montana, by fostering fossil fuels as its primary energy resource, is contributing to a deteriorating …

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Trade Association Submits Challenge to EPA’s New PFOA and PFOS Health Advisories

As reported in our blog back in June, the Environmental Protection Agency unveiled new drinking-water health advisories (HAs) for PFAS contaminants. Specifically, the advisories drastically reduced acceptable PFOA and PFOS water levels from 70 parts per trillion (set in 2016) down to 0.004 parts per trillion for PFOA and 0.02 parts per trillion for PFOS.  

These new advisories, however, are already the subject of attack. Last week, a leading trade association filed a petition challenging these new HAs.  

The petition was filed with the U.S. …

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What would the declaration of a “national climate emergency” mean for businesses?

President Biden is reportedly contemplating the declaration of a “national climate emergency” (NCE).  According to his advisors, all options are on the table for the administration as it seeks to meet its ambitious climate goals.  But what are these options, and what practical effect would they have?

The most probable economic consequence of an NCE would be a further spike in energy prices.  An NCE would give President Biden access to several tools allowing him to restrict the trade, development, or extraction of fossil fuels.  …

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