The Nickel Report

On August 26, 2022, the US Environmental Protection Agency (EPA) released a pre-publication copy of its much-anticipated proposed rule adding perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) to the list of “hazardous substances” under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund). EPA asserts that this regulatory escalation of PFOA and PFOS will facilitate faster cleanup of contaminated sites and reduce exposures to these “forever chemicals.” If finalized, these hazardous substances designations will have significant and immediate impacts on many industries, from creating new reporting obligations to increased compliance, enforcement, and litigation risks related to site cleanup. EPA’s efforts involving PFOA and PFOS fall within the broader, whole-of-agency approach to addressing PFAS first announced in its PFAS Strategic Roadmap and represent its first ever exercise of its authority under CERCLA section 102(a) to designate a hazardous substance.

On July 28, 2022, the US Environmental Protection Agency (EPA)  published the 2021 Toxics Release Inventory (TRI) preliminary dataset that provides public access to data about chemical releases, waste management, and pollution prevention activities that took place in calendar year 2021 at more than 20,000 federal and industrial facilities across the country. The 2021 preliminary dataset, which for the second year includes reporting on per- and polyfluoroalkyl substances (PFAS) added to the TRI by the 2020 National Defense Authorization Act (NDAA), has not yet undergone the complete TRI data quality process. EPA plans to publish the quality-checked dataset in October 2022, at which time it will be the basis for the 2021 TRI National Analysis interpreting the information and examining trends that is expected to be published in early 2023. Companies should bear in mind that information collected under the TRI program can be used not only to inform regulatory action, but also as a basis for enforcement by EPA and citizen suits.

On July 20, 2022, in Naturaland Trust v. Dakota Finance, LLC, No. 21-1517, a split Fourth Circuit panel held that a state agency’s notice of violation did not “commence an action” within the meaning of 33 U.S.C. § 1319(g)(6)(A)(ii). That provision states that a Clean Water Act violation “shall not be the subject of” a citizen suit for civil penalties if a state “has commenced and is diligently prosecuting” an action with respect to the violation “under a State law comparable to” the Clean Water Act. The court also held that this provision is not jurisdictional.

The Gulf of Mexico (GOM) has long been home to offshore energy development, but with President Biden’s call to advance offshore wind development, a new change is potentially coming to the horizon—wind farms. At the helm of GOM wind development is the Department of the Interior’s (DOI) Bureau of Ocean Energy Management (BOEM), who has now announced the solicitation of public comments on two potential wind energy areas (WEA) off the coasts of Texas and Louisiana and the related environmental assessment (EA) for the entire GOM Call Area.

We have written extensively on the US Securities and Exchange Commission (SEC) proposal to require that public companies disclose climate-related information and other environment, social, and corporate governance (ESG) trends. However, the European Union (EU) is at the vanguard of emerging requirements focused on climate-related information and broader ESG-aligned information.

This week the US District Court for the Northern District of California overturned three Endangered Species Act (ESA) rules issued in 2019 that address: (1) listing species and designating critical habitat, (2) extending take prohibitions to threatened species, and (3) § 7 interagency consultation. Center for Biological Diversity v. Bernhardt, 19-05206 (N.D. Cal. July 5, 2022). The three rules were issued by the US Fish and Wildlife Service and National Marine Fisheries Service (together, the Services) in August 2019 and together represented the first comprehensive revisions to the ESA regulations in 33 years. The order has a number of important regulatory and caselaw implications. 

Yesterday, June 23, 2022, The Biden Administration announced the launch of a Federal-State Offshore Wind Implementation Partnership (“Partnership”) to expedite and foster the growth of wind energy, tackle the climate crisis, strengthen American energy security, and achieve the goal of deploying 30 gigawatts (GW) of offshore wind by 2030. 

On June 15, 2022, the United States Environmental Protection Agency (EPA) released drinking water health advisories [1] for certain per- and polyfluoroalkyl substances (PFAS), resulting in the establishment of:

1. Near zero updated interim advisory levels for Perfluorooctanoic acid (PFOA) and Perfluorooctane sulfonic acid (PFOS) that are not only orders of magnitude below previously established levels, but that are also below detectable levels and, notably, were issued in advance of completion of peer review by EPA’s Science Advisory Board (SAB); and
2. Newly issued final advisories at low levels for GenX and PFBS chemicals that have been used as replacement chemicals for PFOA and PFOS.

Prompted by several emergency events, as previously reported, on June 1, 2022, the Texas Commission on Environmental Quality (TCEQ) adopted revisions to the compliance history rules to authorize the executive director to reclassify a site’s compliance history if an “exigent circumstance” exists. An exigent circumstance is defined as: i) a significant disruption to one or more local communities; ii) a significant commitment of emergency response resources by a federal or state authority to address an actual unauthorized release of pollutants, contamination, or other materials regulated by the agency; and iii) a significant event the commission determined must be urgently accounted for in the site’s compliance history.

In a wide-ranging interview on environmental justice (EJ) issues with Inside EPA, Hunton Andrews Kurth LLP partner Matt Leopold discussed the US Department of Justice (DOJ) and Environmental Protection Agency’s (EPA) new enforcement strategy.