Photo of Casey J. Snyder

On January 31, 2024, EPA published a press release announcing the impending publication of two proposed rules relating to PFAS and the Resource Conservation and Recovery Act (RCRA): (1) “Definition of Hazardous Waste Applicable to Corrective Action from Solid Waste Management Units” and (2) “Listing of Specific PFAS as Hazardous Constituents.”  

Definition of Hazardous

The Sixth Circuit issued an order on September 9, 2022 granting review of a class certification from March 7, 2022 that certified a class of roughly 11.8 million Ohio residents claiming injuries from per- and polyfluoroalkyl substances, or PFAS.

Background

Filed in 2018 in the Southern District Court of Ohio, the lawsuit alleged the named

Introduction

President Biden signed the Inflation Reduction Act of 2022 (the Act) into law on August 16, 2022.  The Act represents an expansive investment in the energy industry, with many provisions targeting clean energy and climate change issues through funding and tax credits.  However, several notable provisions from an environmental permitting and compliance standpoint are buried amongst the financial and tax provisions.  These environmental provisions relate to permitting and compliance that the regulated industry, especially energy companies, should watch closely.

Funding for Permitting and Programmatic Development

The Act provided significant funding to regulatory authorities for a number of permitting-related activities. 

For example, the National Oceanic and Atmospheric Administration (NOAA) received $20 million to assist with permitting and project review.  The funds are meant to result in more efficient, accurate, and timely reviews for planning, permitting and approval processes through hiring and training personnel and obtaining new technical and scientific services and equipment. 

The United States Environmental Protection Agency (U.S. EPA) received $40 million for its permitting and project review efforts.  The funds will be utilized to develop efficient, accurate, and timely reviews for permitting and approval processes through hiring and training of personnel, development of U.S. EPA programmatic documents, procurement of technical or scientific services for reviews, development of environmental data and new information systems, purchase of new equipment, developing new guidance documents, and more.

The Act provided over $62.5 million to the Council on Environmental Quality to develop programmatic documents, tools, guidance, and improvement engagement.  These funds will also support collection of data regarding environmental justice issues, climate change data, development of mapping/screening tools, and tracking and evaluation of cumulative impacts. 

Several other federal agencies received millions in funding for review and planning of electricity generation infrastructure, like the Federal Energy Regulatory Commission, the Department of Energy, and the Department of the Interior.  Funding will be used to facilitate timely and efficient reviews, as well as generate environmental programmatic documents, environmental data, and increase stakeholder and community involvement. 

In sum, regulators involved in environmental and energy permitting received a substantial boost in funding targeting the permitting process, including supporting the development and build out of programmatic documents and capabilities.  The funding could improve the timing of the permitting processes for these agencies, but it could also lead to additional administrative burdens in the form of new application and compliance materials and increased regulatory scrutiny where a regulator has more time and money to invest in the regulatory process.Continue Reading Environmental aspects of the Inflation Reduction Act of 2022

Before the 2010s, many real estate deals closed without the mere mention of per- and polyfluoroalkyl substances (PFAS) as part of negotiations or in diligence.  Leap forward a decade to 2022 and diligence questions relating to the presence of PFAS on real estate are essentially market, especially for industrial and some commercial properties.  The paradigm shift cannot be attributed solely to one force; instead, a culmination of regulatory, statutory, judicial, and transactional considerations have elevated PFAS to an issue that could seriously impede or even kill a deal. 

Whether involved as a seller, buyer, lender, or another interested party concerned about the liabilities, there are several key considerations, among others, that parties to real estate transactions should be aware of in 2022.Continue Reading PFAS and Real Estate Transactions: Key Considerations in 2022

On October 18, 2021, the U.S. Environmental Protection Agency (EPA) announced a per- and polyfluoroalkyl substances (PFAS) Strategic Roadmap (the Roadmap) detailing steps that the EPA plans to take to address PFAS contamination. PFAS are largely unregulated, but studies linking certain PFAS to health issues and their persistence in the environment and human body are driving the push for increased regulation. Currently, the EPA has established only a non-enforceable health advisory level for two PFAS, perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS). Additionally, some states have been moving forward at different speeds to establish state-specific PFAS regulations, including drinking water standards and cleanup levels for soil and groundwater remediation. However, the EPA’s Roadmap suggests increased federal regulation looms.

The EPA’s approach under the Roadmap considers the lifecycle of PFAS, focusing not only on remediating PFAS-contaminated sites and regulating PFAS discharges or emissions, but also regulating PFAS at the upstream level where they are produced and incorporated into products. Other areas of focus called out in the Roadmap include (1) an emphasis on enforcement actions at PFAS-contaminated sites and placing responsibilities for limiting exposure on manufacturers, processors, distributors, and similar users; (2) research into PFAS over health effects and remediation technologies; and (3) an environmental justice focus on prioritization of PFAS effects on disadvantaged communities.Continue Reading U.S. EPA releases Roadmap to address PFAS contamination

Litigation seeking to broaden the application of Pennsylvania’s Environmental Rights Amendment, Pa. Const. art. I, §27 (“ERA”) was rejected on August 6, 2021, when the Commonwealth Court of Pennsylvania dismissed an amended petition for review filed by the Pennsylvania Environmental Defense Foundation (“PEDF”) challenging the Pennsylvania Department of Conservation and Natural Resources’ (“DCNR”) State Forest Resource Management Plan (“SFRMP”).  Pennsylvania Environmental Defense Foundation (“PEDF”) v. Commonwealth, No. 609 M.D. 2019 (Pa. Cwmlth. 2021).

PEDF sought declaratory relief regarding DCNR’s SFRMP published in 2016.  Specifically, PEDF asked the Commonwealth Court to: (1) declare certain statements made by DCNR in the SFRMP in violation of the ERA, and (2) compel DCNR to amend the SFRMP to make it comport with DCNR’s responsibilities to manage the resources consistent with its duties as a trustee under the ERA.  According to PEDF, in 2016, DCNR amended its SFRMP to support management decisions based on economic principles.  PEDF also raised issues related to DCNR’s mission statement regarding extraction and sale of oil and gas for the benefit of DCNR and the Commonwealth.  Additionally, PEDF asked the Commonwealth Court to require DCNR to include an evaluation of the degradation of resources caused by past and present oil and gas development in the SFRMP, and to implement measures into the SFRMP that remedy the alleged degradation.

The Commonwealth Court granted DCNR’s preliminary objections and dismissed all counts.  With respect to the requests by PEDF to declare DCNR is in violation of the ERA based on specific statements in the SFRMP, the Commonwealth Court held that the SFRMP does not create legal requirements or regulations, meaning DCNR is not mandated to take any actions by the SFRMP.  Therefore, the Commonwealth Court found declaratory judgment would be inappropriate.  Similarly, the SFRMP lacked “concreteness” with respect to whether PEDF’s claims were ripe for review.  As such, PEDF’s claims would bring the court into “the realm of speculation and conjecture.”  Finally, the Commonwealth Court determined that the relief seeking general pronouncements of law with respect to DCNR’s statements runs against the proscription against advisory opinions, because there was no justiciable dispute or controversy within the meaning of the Declaratory Judgments Act.  42 Pa.C.S. §§7531-7541.Continue Reading Court rejects attempt to scrutinize nonbinding state agency policy under Pennsylvania’s Environmental Rights Amendment