The Diamond Alkali Superfund site in Newark, New Jersey, which includes the 17-mile Lower Passaic River Study Area, may be one of the country’s most expensive and hotly contested Superfund Sites. The remedy for the dioxin-contaminated river may cost as much as $2 billion when it is completed. The Newark site has been the subject of litigation for years, most involving the Occidental Chemical Company (OxyChem), the successor to Diamond Alkali, which made Agent Orange and other dioxin-containing materials at the site starting in the 1940s. The latest development in this decades-long saga came on December 18, 2024, when Judge Madeline Cox Arleo of the United States District Court for the District of New Jersey approved a consent decree between the Environmental Protection Agency (EPA) and 82 potentially responsible parties (PRPs) that includes a $150 million cash-out settlement, notwithstanding vehement opposition from OxyChem. 

The Diamond Alkali site has been on the National Priorities List since 1984 after the EPA and New Jersey regulators found high levels of dioxins, pesticides, and other hazardous substances in soil and groundwater at Diamond Alkali’s Newark site and in Passaic River sediments. Over the years, EPA identified OxyChem and over 100 other PRPs, all of whom were allegedly responsible for the discharge of hazardous substances to the Passaic River.  While EPA has identified eight contaminants of concern (COCs) at the site, the Court found that “of those COCs, dioxin is, ‘by an overwhelming margin,’ the most toxic.” This was a significant finding, as very few PRPs could be tied to dioxin discharges.

The EPA initiated a non-binding and voluntary allocation process in 2017 to facilitate settlements and cleanup of the river. While many PRPs agreed to participate in this effort, OxyChem declined. The parties negotiated an allocation methodology, supplied significant material (including briefs and expert reports) for consideration by a neutral, third-party allocator, reviewed Facility Data Reports for themselves and other PRPs, and commented on the Allocation Recommendation Report (the Report). The Report was then considered by EPA as it negotiated the terms of a consent decree with the PRPs. While the Report assigned the overwhelming share of responsibility for the site to OxyChem, during the consent decree negotiations, EPA took several steps which resulted in an increased share of responsibility for the PRPs, thus reducing OxyChem’s potential exposure. These steps included using an alternative allocation methodology, eliminating consideration of culpability and cooperation as allocation factors, and adding a premium of 100% to estimated future costs for cash-out parties. Other revisions were made after the comment period, including removal of certain parties from the consent decree, and adding a reopener if remedy costs exceed a certain amount.

In its 47-page decision, the District Court found that the consent decree was fair, reasonable, and furthered the Comprehensive Environmental Response, Compensation and Liability Act’s (CERCLA) objectives, notwithstanding a massive challenge from OxyChem (The Court noted that OxyChem “spills ample ink” challenging the allocation in its 777 pages of comments and 24,000 pages of exhibits). The Court rejected claims that the settling parties conspired against OxyChem; the neutral had a conflict of interest; the Report was a non-binding allocation report prepared in violation of CERCLA § 122; and the consent decree was substantively unfair.

There seems to be little doubt that OxyChem will appeal, so the saga will continue. But this is an important milestone that, in the Court’s words, will further the cleanup of the Passaic River.

On December 11, 2024, the Occupational Safety and Health Administration (OSHA) announced it finalized a revision to the personal protective equipment (PPE) standard for the construction industry. The final rule adds specific language to the existing standard requiring employers to provide properly fitting PPE for construction industry workers. This change aligns the construction industry with the standards in place for the general industry.

According to OSHA, many types of PPE must properly fit workers. Improperly sized PPE can ineffectively protect workers, creating new hazards for them, such as oversized gloves or protective clothing being caught in machinery and discouraging use because of discomfort or poor fit. OSHA stated that the longstanding issue with improperly fitting PPE particularly impacted women, as well as physically smaller or larger workers. 

Starting in January, construction employers will need to give their workers well-fitting safety gear. Among other equipment, this includes gloves, high-visibility vests, goggles, fall protection harnesses, and helmets that “properly fit” the workers. However, the final rule does not provide clear guidance on how employers or workers determine if PPE properly fits. OSHA only provided a limited number of examples of ill-fitting gear, such as long pants legs that could lead to the employee tripping and welding gloves too large for the employee to pick up items.

Publishing this final rule coincides with a post-election push by federal agencies to finalize major agenda items before January. However, the PPE final rule will still be subject to the Congressional Review Act and thus subject to being overturned by the next administration. That being said, the rule has enjoyed support from both industry and labor.

As the Biden-Harris administration draws to a close, EPA has issued its third annual report touting the progress made under the PFAS Strategic Roadmap.

In the report, EPA notes the major legal, technical, and policy developments it has enacted since the PFAS Strategic Roadmap was adopted in 2021. Those developments include the following:

  • Designation of PFOA and PFOS as CERCLA Hazardous Substances. This final rule will allow EPA and others to pursue potentially responsible parties under CERCLA for PFAS contamination. According to EPA, this designation will ensure that polluters, and not taxpayers, will pay for PFAS cleanups.
  • Creation of Drinking Water Standards for Certain PFAS. This final rule established enforceable drinking water standards for 5 individual PFAS and mixtures of any 2 or more of 4 individual PFAS. These drinking water standards are as low as 4 parts per trillion for PFOA and PFOS.
  • Chemical and Product Regulation. EPA has enacted or proposed a number of regulations under the Toxic Substances Control Act (TSCA) to eliminate and reduce PFAS in commerce. It also is requiring manufacturers and importers of PFAS (including PFAS-containing items) to report PFAS-related information to EPA by (in most cases) January 11, 2026.
  • Issuance of PFAS Enforcement Strategy. EPA issued a PFAS Enforcement Discretion and Settlement Policy Under CERCLA, detailing its priorities and plans when it comes to PFAS enforcement. In the policy, EPA makes it clear that it intends to pursue enforcement against manufacturing and industrial entities, and not public entities that operate water and wastewater systems, airports, or fire stations.
  • PFAS-Related Investments. The Biden-Harris administration committed to investing significant funds to address PFAS contamination, including $10 billion to assist communities and water systems impacted by PFAS and other emerging contaminants.
  • Advancing the Science on PFAS. EPA has engaged in a number of initiatives to gather more data about the presence of PFAS in the environment and in products, analyze appropriate test methods, and study potential human health risks associated with a variety of PFAS compounds.

EPA also announced future priorities, which include developing effluent limitations guidelines for the PFAS manufacturing sector. If adopted, these guidelines would restrict PFAS in discharges from potentially a number of industrial entities, including metal finishers and landfills. EPA also continues to invest in collecting data from a variety of sources, including wastewater treatment facilities, to further understand where PFAS are being found so it can develop effective ways to address them.

Of course, with the impending change in administrations could come a change in EPA’s priorities related to PFAS. The change could also impact initiatives and regulations that are already in place or in the works. We will continue to monitor PFAS developments as we head into 2025.

This post is also being shared on our Manufacturing Law blog. If you’re interested in getting updates on legal news and perspectives and related business issues that are facing manufacturers and distributors, we invite you to subscribe to the blog.

On July 30, 2024, the U.S. EPA Office of Inspector General issued a fraud alert to bring attention to an increasing number of companies reporting that they have received fraudulent EPA Notice of Violation letters demanding payment. Businesses have received these fraudulent letters through email and U.S. Postal Service mail. The letters allege that the target business violated an environmental regulation, such as the Clean Air Act or Clean Water Act. The contact information provided – invoice@epa.services – is not associated with the EPA. Official U.S. government organizations only use the “.gov” domain name.

If you have received a Notice of Violation and are concerned about its validity or have other questions or concerns, consider consulting experienced legal counsel. You can also contact the U.S. EPA’s enforcement office at OECA_Communications@epa.gov with any concerns regarding potentially fraudulent letters.

The U.S. EPA’s Office of Inspector General’s Hotline ((888) 546-8740 or OIG.Hotline@epa.gov) is always available if you believe you have been the victim of fraud or have knowledge of potential waste, fraud, or abuse involving EPA operations and programs.

On July 2, 2024, OSHA released the long-awaited Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings proposed rule. If finalized, the rule would require millions of employers to take steps to protect their workers from extreme heat. However, the proposed rule would not apply to “sedentary” or remote workers, emergency-response workers, or employees at indoor job sites where temperatures are kept below 80 degrees Fahrenheit.

Under the proposed rule, employers would be required to identify heat hazards, develop emergency response plans related to heat illness, and provide training to employees and supervisors on the signs and symptoms of such illnesses. Employers would also have to establish appropriate rest breaks, provide shade and water, and heat acclimatization for new employees and those employees that have been away from the worksite for more than 14 days.

The final regulation will almost certainly face lawsuits from a variety of entities. Several major industries and trade groups, including many in the construction and manufacturing space, had previously raised concerns about the implement ability of several concepts included in the proposed rule. Such legal challenges are likely to be boosted by the U.S. Supreme Court’s ruling last week eliminating the deference that courts owe to agency rulemaking.

However, before the proposed rule can become a final regulation, it must undergo a public notice and comment period. OSHA encourages the submission of written comments on the rule once it is published in the Federal Register. OSHA also has plans to hold a public hearing after the close of the written comment period. More information will be available on how and where to submit comments when the proposed rule is officially published in the Federal Register.

While we wait for the rule to become final, OSHA has made clear that it will continue to hold employers accountable for violations of the General Duty Clause and other regulations implicated by heat-related injuries and illnesses. This includes the continuation of heat-related inspections under OSHA’s National Emphasis Program – Outdoor and Indoor Heat-Related Hazards, which began in 2022.

Employers of all sizes and industries would be impacted from a final regulation on extreme heat. While the proposed rule is not yet binding on employers, it can be helpful to review the rule and evaluate whether your workplace is safe, healthy, and free from recognized hazards that could cause death or serious physical harm – such as exposure to extreme or excessive heat.

Below is an excerpt of a legal update co-authored with Real Estate + Development Group lawyer Eden Yerby.

In companion rulings favoring offshore wind developers and federal agencies, the First Circuit Court of Appeals recently affirmed rulings issued by the District Court (D. Mass.) and dismissed challenges brought by two Vineyard Wind opponents concerning the project’s potential impact on the endangered North Atlantic right whale.[1] In both cases, a panel of the same three judges addressed challenges to the administrative procedures followed by the National Marine Fisheries Service (NMFS) and the Bureau of Ocean Energy Management (BOEM) in issuing a biological opinion and an Incidental Harassment Authorization (IHA) for the project that would directly impact the right whale. In two decisions authored by Judge Kayatta analyzing aspects of the federal permit approval process, the Court ruled that the agencies properly evaluated potential impacts to the right whale and did not violate the authorizing statutes or otherwise act arbitrarily or capriciously. Read the full legal update.

EPA recently issued its long-awaited rule designating perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) as hazardous substances under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). Along with the rule, EPA issued PFAS Enforcement Discretion and Settlement Policy Under CERCLA. This policy document provides the regulated community with some insight as to how EPA may roll out this rule in practice.

According to the policy document, EPA intends to focus its PFOA/PFOS CERCLA enforcement efforts on “responsible entities who significantly contributed to the release of PFAS into the environment, including parties that manufactured PFAS or used PFAS in the manufacturing process, federal facilities, and other industrial parties.” EPA does not intend to use its CERCLA authority to pursue certain public and other entities, such as:

  • Community water systems
  • Publicly owned treatment works (POTWs)
  • Publicly owned/operated municipal solid waste landfills
  • Publicly owned airports
  • Local fire departments

Based upon how PFAS are being investigated and discovered in the environment, the above entities are often on the front lines of identifying PFAS in the environment. They are also providing important public services. Because of this, EPA intends to focus its enforcement efforts elsewhere.

In considering whether to pursue other parties under CERCLA, EPA will consider a number of factors:

  • Does the entity manufacture PFAS or used PFAS as part of an industrial process?
  • Is the entity is actively involved in the use, storage, treatment, transport, or disposal of PFAS?
  • Does the entity perform a public service role?
  • Is the entity a state, local, or tribal government?

Based on the above factors, it seems clear that EPA intends to focus its PFAS CERCLA enforcement efforts on the manufacturing and industrial sectors. That enforcement activity could very well arise out of contamination discovered in water systems, POTWs, landfills, etc., but it appears EPA will focus on the manufacturing and industrial entities that may have contributed PFAS to the environment.

EPA will also seek to protect the public entities listed above in pursuing CERCLA settlements. For example, when EPA enters into a settlement with a PFAS manufacturer, it may look to secure a waiver of rights to prevent that manufacturer from seeking contribution from certain non-settling parties. EPA may also enter into favorable settlements with the public entities listed above to shield them from lawsuits from other potentially responsible parties.

EPA makes it clear that this enforcement policy applies to CERCLA only. EPA further reserves the right to change this policy as the scientific and legal landscapes evolve. That said, for now, it appears that the manufacturing and industrial communities may find themselves in the crosshairs of CERCLA enforcement.

This post is also being shared on our Manufacturing Law Blog. If you’re interested in getting updates on legal news and perspectives and related business issues that are facing manufacturers and distributors, we invite you to subscribe to the blog.

On May 10, 2024, extensive revisions recently adopted by the Environmental Protection Agency (EPA) to the Risk Management Program (RMP) regulations (40 CFR Part 68) will take effect. The revisions, dubbed by EPA as the “Safer Communities by Chemical Accident Prevention Rule,” reinstate certain Obama-era provisions previously rolled back under the Trump administration. However, the revisions also enlarge some of these provisions and add significant new requirements, including some that reflect the current administration’s focus on climate change and environmental justice.

The revisions require owners and operators of subject facilities to achieve compliance with most of the substantive requirements within three years (i.e., by May 10, 2027). RMP plans must be updated to reflect new applicable requirements and resubmitted to EPA within four years (i.e., by May 10, 2028). For certain other requirements (regarding emergency response field exercises), the compliance deadline is potentially shorter or longer than these three- and four-year periods, depending on the date of the facility’s most recent field exercise.

Once the rule takes effect, court challenges by both business interests and environmental groups are expected. However, given the unknown outcome of such challenges and the breadth and potential costs of the new requirements, potentially impacted facilities should begin assessing the applicability of the revisions now.

Background

The RMP regulations implement Section 112(r) of the 1990 Clean Air Act Amendments (42 U.S.C. 7412(r)), which direct EPA to develop regulations to improve the prevention of chemical accidents at stationary facilities or activities (for brevity, referred to here simply as “facilities”) that use or store “regulated substances” that EPA has identified as presenting the greatest risk of harm from accidental releases. In particular, the owner and operator of a facility with one or more “processes” that manufactures, uses, stores, or handles such a regulated substance in excess of substance-specific threshold quantities must develop and implement a risk management program for all such processes, and document that program in a risk management plan submitted to EPA.

RMP requirements are generally similar to, and in some respects will overlap with, requirements under the Process Safety Management (PSM) program administered by the Occupational Safety and Health Administration (OSHA). However, while OSHA’s PSM regulations focus on workplace safety, the RMP regulations focus primarily on minimizing the public impacts of accidental releases through prevention and emergency response.

Continue Reading EPA Turns Up the Pressure on Chemical Release Prevention and Preparation

Earlier this year, the Connecticut Department of Energy and Environmental Protection (DEEP) released a “Connecticut Environmental Justice Public Participation Guidance Document” (‘the Guidance”) concerning the 2023 amendments to Connecticut’s environmental justice (EJ) statute regarding permitting or other approvals for certain facilities. Although helpful in indicating DEEP’s interpretation of the amended statute (which is not a model of legislative clarity), the Guidance leaves open many questions and raises some new ones. Beyond the Guidance, however, DEEP recently announced a general schedule for developing regulations to implement the most significant part of the amendments: cumulative impact assessments.

Background

Since its adoption in 2009, Connecticut’s EJ statute (Conn. Gen. Stat. § 22a-20a) has applied to “affecting facilities” that are located in or proposed to be located in an “environmental justice community” (both terms defined by the statute) and that apply to DEEP for a new or expanded permit, or to the Connecticut Siting Council for a Certificate of Environmental Compatibility and Public Need. For such facilities, the statute has required applicants to develop and implement a “meaningful public participation plan” and potentially enter into a “community environmental benefit agreement” (CEBA) between the applicant and the host municipality to mitigate potential environmental impacts of the affecting facility.

The 2023 amendments (Public Act 23-202) became effective on October 1, 2023. The amendments primarily do two things: (1) further enlarge applicant obligations concerning public participation, and most significantly, (2) make an assessment of the cumulative impact of “environmental and public health stressors” a new element in reviewing – and potentially denying – “affecting facility” applications. However, the amendments state that the cumulative impact assessment features shall not take effect until DEEP has adopted implementing regulations. The statute also requires DEEP to consult with stakeholders in this effort.

Public Participation Guidance

The recent Guidance addresses only the enhanced public participation features of the 2023 amendments and expressly does not address the cumulative impact assessments. It simply states that the development of the cumulative impact regulations will “take time.” The 2023 amendments also call for DEEP to adopt implementing regulations for the enhanced public participation features. However, the Guidance does not address such regulations or provide a timeline for their implementation.

The Guidance does highlight new requirements regarding public participation and presents DEEP’s integrated understanding of such requirements.  Much of this understanding is straightforward. For example, “affecting facility” applicants must now not only prepare and receive DEEP approval for a “meaningful public participation plan” before filing the application in question but must also prepare and receive DEEP approval for a report regarding the results of such public outreach in order for the application to be deemed sufficient. 

Beyond that, Goal 8 of DEEP’s recently announced “20BY26” plan includes several steps that DEEP plans to take regarding the enhanced public participation under the 2023 amendments, including:

  • Making all EJ public participation plans and CEBAs publicly available, including those that DEEP has previously received.
  • “Produc[ing] other tools … [to] facilitate efficiency and engagement,” such as more guidance to clarify how DEEP permitting and other programs interact with EJ communities, and to highlight opportunities for public participation in DEEP programs. 

While much of the Guidance is a relatively straightforward reflection of the 2023 amendments, at times the Guidance appears to provide DEEP’s interpretation of certain provisions in the amendments. Certain statements also may be susceptible to misinterpretation.  For example, in discussing applicability of the amended statute where an existing “affected facility” adds a new emissions unit or modifies an existing emissions unit, the Guidance references certain emissions rates (15 tons per year (TPY) for any individual air pollutant, and 10 TPY and 25 TPY for individual and aggregate hazardous air pollutants, respectively). DEEP has informally indicated that these figures are intended to mirror the applicability thresholds in the state’s air permitting regulations (RCSA 22a-174-3a(a)(1)).  This suggests that DEEP does not see the amended EJ statute as triggered by changes at an existing affected facility with relatively limited impact on air emissions. 

However, while the Guidance appears to say that these emission rates refer to actual emissions or increased actual emissions, in the air permitting regulations these figures refer exclusively to “potential emissions.”  This is a very conservative metric incorporating various worst-case and often very unrealistic assumptions, with the result that it is much easier to exceed a 15 TPY “potential emissions” threshold.  It would seem unlikely that the Guidance does not likewise intend to refer to “potential emissions.” The Guidance may also be susceptible to misinterpretation regarding modifications to existing affected facilities.  The Guidance appropriately notes that the EJ statute exempts “minor modifications,” but elsewhere states without qualification that the statute applies to an alteration of a facility that “may result in the discharge of any new water, substance or material.” (Emphasis added).  These examples underline that (as it itself notes) the Guidance is not a substitute for the statute itself.

Lastly, the Guidance does not address what DEEP envisions as a “reasonable fee” that the statute authorizes DEEP to charge “affecting facility” applicants to cover the cost of implementing the amended program.

Ultimately, while the Guidance is useful to some degree, the full impact of Public Act 23-202 will not be known until DEEP develops implementing regulations for the enhanced public participation requirements and particularly for cumulative impact assessments. 

Development of Cumulative Impact Regulations

In early March, DEEP announced an overall scheme and schedule for adopting cumulative impact regulations as Goal 7 in DEEP’s “20BY26” plan:

  • Hold “listening sessions” in EJ communities and with regulated parties (throughout 2024).
  • Release a Request for Proposals to develop “the ‘cumulative impacts tool’ that ultimately will give businesses the information that they can rely on to design, from the start, successful permit applications” (early 2024).
  • Propose “a strong but flexible set of rules” for public comment (late 2025). 

Interested parties would be well-advised to watch for opportunities for stakeholder involvement in these efforts as DEEP continues to implement the 2023 amendments. Those who are particularly interested can also sign up to receive DEEP’s Equity and Environmental Justice Newsletter, which includes timely updates on upcoming opportunities and events from DEEP’s Office of Equity and Environmental Justice.

The EPA Office of Inspector General’s (OIG) February 15, 2024, report on EPA’s practices in collecting, retaining, and producing criminal discovery materials in environmental cases found that EPA’s special agents largely adhered to requirements embedded in the due process clauses of the U.S. Constitution, the Brady doctrine, the Jencks Act, and the Federal Rules of Criminal Procedure. While the OIG identified some instances where agents deviated from procedures established by the Office of Criminal Enforcement, Forensics and Training (OCEFT) that could impact discovery during criminal proceedings, such as the use of a personal camera during an investigation, they did not amount to violations of applicable discovery requirements. Based on OIG’s evaluation, OCEFT was advised to review its policies and procedures to determine whether they required updating or whether the establishment of best practices was necessary. Alternatively, OIG recommended periodic training of EPA inspectors and investigators who may support the Government’s prosecution team.

Within EPA, OCEFT sits within the Office of Enforcement and Compliance Assurance (OECA), and both investigate violations of environmental laws and provide technical and forensic services for broader civil and criminal investigations. OCEFT is divided into three divisions: (i) the Criminal Investigation Division, (ii) the Legal Counsel Division, and (iii) the National Enforcement Investigations Center. In a federal investigation of potential environmental crimes, the EPA is considered part of the Government’s prosecution team and is primarily responsible for the investigation component of the process. OCEFT special agents work with the EPA and attorneys at the DOJ and in U.S. Attorney’s Offices. Individual agents are required to provide prosecutors with all potentially discoverable information for prosecutors to evaluate their discovery obligations. While special agents do not make those disclosure determinations, successful prosecutions require that all evidence has been collected in accordance with applicable constitutional and procedural requirements.

OIG’s assessment of OCEFT procedures focused on their application in individual cases to ensure that the Government met its discovery obligations when prosecuting environmental crimes. OIG found no instance where OCEFT agents did not adhere to criminal discovery requirements. It did note, however, circumstances in which agents did not fully apprehend investigative policies and procedures and would benefit from additional training.

The OIG report provides a good overview of EPA’s criminal enforcement procedures and the federal criminal process, generally, as it applies to environmental prosecutions. With OECA head David Uhlmann’s recent Senate confirmation, over two years following his nomination, the EPA now has all of its resources in place to address the agency’s high-priority concerns, including PFAS contamination.