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According to POLITICO, even Republicans in Congress are concerned that the EPA will not move forward with a rulemaking to regulate PFOS and PFOA.  It appears acting EPA Administrator Andrew Wheeler has already approved a decision, contained in the agency’s forthcoming chemical management plan, not to add the chemicals to the group of contaminants regulated under the Safe Drinking Water Act.  The decision follows controversy over the Trump administration’s suppression of a report from the Department of Health and Human Services which suggests that Perfluoroalkyl compounds, which include PFOS and PFOA, are more prevalent, and pose a greater risk to Americans’ health, than previously known.

The question now is whether Congress will take any action.  It has rare leverage at the moment, as Mr. Wheeler’s nomination to head the EPA as its permanent Administrator is in the hands of the Senate Environment and Public Works Committee.  A vote is scheduled for February 5th and, on a committee where the Republicans have only a one seat advantage, a defection by any one of them could potentially kill Mr. Wheeler’s prospects.  Senator Shelley Moore Capito of West Virginia has spoken out on the need to address Perfluoroalkyl contamination and may be the deciding vote.

Given the willingness of numerous elected Republicans to come out in favor of new federal regulations for PFOS and PFOA, some additional EPA action on the subject seems inevitable sooner or later.  And although EPA is likely to add PFOS and FPOA to the list of CERCLA hazardous substances, that will probably be viewed as inadequate by many, given how prevalent the chemicals are now understood to be.

But even if eventual federal regulation of PFOS and PFOA in drinking water were a certainty, further delay will likely have several significant effects.  Deferred  remediation expenditures is one obvious one.  Less straight forward, however, is the impact from parallel state action.  Some states already regulate the chemicals in groundwater and more will likely follow, particularly in the face of federal inaction.  If more of those regulatory regimes have time to be put into place and tested on a wide scale, they could indirectly shape federal regulation.  EPA may approach its regulatory role differently in a context where a contaminant is almost completely unregulated, compared to one where many states are effectively addressing a problem.  Furthermore, the Clean Drinking Water Act regulation must consider economic costs and benefits, and if states push ahead in this area they may spur the generation of substantial data on which the Agency can make that assessment.

We expect a lot more news and developments in this area and will be tracking it closely at Environmental Law Next.

The New York Times published a report over the weekend detailing a fall-off in the EPA’s enforcement activities during Scott Pruitt’s tenure as EPA Administrator.  The changes are driven by top down directives from Washington to the regional offices.

The Times found that Scott Pruitt’s EPA started about 1,900 enforcement actions in the nine months since he was confirmed,  around a third fewer than the equivalent period during the Obama administration and a quarter fewer than during the same stretch of the George W. Bush administration.  The analysis found that the civil penalties the current EPA has sought are also less than they were under Pruitt’s predecessors.

Perhaps most significant has been the drop in demands for injunctive relief against alleged violators.  The $1.2 billion of requests made under Pruitt is just 12% of what was sought by the Obama administration in its first nine months.

Data of this kind over the relativity small time period of nine months can be misleading because enforcement actions take time to develop.  Final outcomes – penalties collected and compliance investments compelled – are a better gauge of how aggressive and effective an administration’s enforcement activities are. Nevertheless, several parameters strongly suggest a fundamental shift to a more lax approach to enforcement under Scott Pruitt.

The Times found evidence in addition to enforcement data that shows a purposeful decision by the Agency’s political appointees to rein in enforcement.  For example, it has moved to curtail some of its regional offices’ operating autonomy with respect to issuing information requests to regulated entities.  A confidential May 31, 2017 memorandum from the Director of the Office of Civil Enforcement instituted a new policy.  Now “HQ review is required prior to issuance of information requests under CAA § 114, RCRA § 3007 and CWA §308.”

In response to the New York Times article, EPA issued a release accusing the newspaper of distorting facts about enforcement under the current administration, although the statement does not dispute any specific factual statements in the article.  EPA’s response also asserts that, to date, “no request to gather enforcement information has been denied.”

The article did not include aggregate data on the number of information requests issued since the memorandum was delivered to each of the regional offices.  The Times did, however, discover that, in Region V, requests for information that include a monitoring or testing requirement fell from an average of 4.2 per month to only 1 since May 31st of this year.  It is probably too early, however, to tell if this is indicative of future levels or just a temporary slow-down due to new procedures.

How much control over information requests EPA exercises from Washington is something we will be watching very closely.  They are an essential tool for discovering violations and building enforcement actions.  Which individual information requests, if any, Pruitt’s administration declines to permit might also give an indication of what industries are likely to avoid enforcement generally.  Check back with Environmental Law Next in coming months for more information on this subject.

An Illinois appellate court recently ruled that the 15 year post-closure monitoring requirement for sanitary landfills under the Illinois Environmental Protection Act sets the minimum, not maximum, period, and that that the operator will be required to continue post-closure monitoring if the threat of future violations of the Act is present.

D&L Landfill, Inc., the petitioner in the case, operated a landfill in Greenville, Illinois until it ceased accepting waste in 1996.  The Illinois Environmental Protection Agency approved its final post-closure care plan the following year.  Fifteen years after the beginning of the “15 year minimum post-closure care period” identified in the plan, D&L filed an application to end all post-closure care.  The application was originally denied because affirmative remedial action was necessary at the site, including repairs to the final cover.  After that was completed, however, the Agency continued to deny post-closure certification on the grounds that groundwater contamination, although trending downward, still exceeded applicable standards.  It relied on 35 Ill. Adm. Code 807.524(c), which requires that the Agency only certify post-closure care has ended if it determines “(1) That the post-closure care plan has been completed; and, (2) That the site will not cause future violations of the Act or this Part.”  As a result, the Agency told D&L, it had to keep monitoring groundwater until the Agency was satisfied there was no longer a threat of exceedances.

D&L argued that the Agency’s position was impermissible under Section 22.17(a) of the Act, which provides that the owner or operator of a sanitary landfill must monitor gas, water and settling at a closed landfill for 15 years after the site is completed “or such longer period as may be required by Board or federal regulation.” 415 ILCS 5/22.17(a).  D&L asked the court to find that absent a regulation that explicitly extending the 15 year monitoring period, its obligations terminated as a matter of law after it completed its 15 year post-closure care plan.  The Court disagreed, finding instead that Section 22.17(a) should be construed liberally to effectuate the Act’s purposes, and the Agency’s interpretation is superior for the purpose of ensuring adequate responses to unforeseen environmental issues that arise during the post-closure period.

The decision could mean much greater uncertainty for landfill owners and operators. Compliance for 15 years with an approved post-closure care plan does not guarantee that their obligations to a site that has long since ceased generating revenue will end.  Moreover, the opinion suggests that the Agency can place the burden on the landfill to prove that no violations will occur in the future before it can obtain post-closure certification.  Accordingly, landfill owners and operators that had been counting on post-closure care costs being fixed at the cost of compliance with their approved plan might be in for an unpleasant surprise.

We will continue to monitor how this may affect landfill owners and operators – check back here for any new developments.

Today, the Environmental Integrity Project released a report finding that in the first six months of the Trump administration, the federal government has collected 60% less in civil penalties in environmental enforcement actions than it did, on average, during the equivalent periods of the Clinton, George W. Bush and Obama presidencies.   Between inauguration day and July 31st, only $12 million has been paid by defendants in actions brought by EPA and the Department of Justice, spread over 26 cases.  The previous three administrations averaged $30 million during their first six months.

Below the headline figures are perhaps more interesting numbers on the amount of money violators are being required to invest to fund injunctive relief, such as pollution control equipment, and other measures to comply with environmental standards.  EPA has only been estimating costs in this category for about 20 years, so there is no reliable data from the first year of the Clinton administration.  In the first six months of President Obama’s first term, however, 22 reported cases required more than $1.2 billion be spent on injunctive relief.  Under President Trump, the amount has been only $197 million.

Although the sample size is limited, and most if not all of the cases involved were brought by the previous administration, these numbers provide a good deal of insight into how the Trump administration is approaching environmental enforcement.  The penalties agreed to by the Trump administration are down not just in the aggregate, but per enforcement action.  The Obama administration recovered three times as much money as the Trump administration in penalties with only eight more cases.  It would therefore not be surprising if the pace of settlements increases in coming months and years.  The regulated community may come to see this moment as a good time to get out from under enforcement litigation on favorable financial terms, while viewing unnecessary delay as a risk.

A federal district court in Oklahoma has held that CERCLA may not be used as a regulatory standard to state a claim for negligence per se. The plaintiffs in Bristow First Assembly of God, et al. v. BP, p.l.c., et al., N.D. Okla., No. 15-CV-523, brought a series of claims against a group of oil and pipeline companies that were alleged to have a prior interest in the Church’s property, which they had been advised by the Oklahoma Department of Environmental Quality was contaminated and no longer safe to use.  Among them was a count brought under a theory that the defendants’ failure to clean up the site was a violation of a continuing duty to remediate damages from their operations under CERCLA and therefore constituted negligence per se.

Judge Terence Kern dismissed the claim, finding that “Plaintiffs have failed to establish that CERCLA sets a standard of conduct on which a negligence per se claim can be based.” The specific issue was apparently one of first impression in the 10th Circuit.  The Court, however, relied on decisions of district courts elsewhere in the country to support its decision.  Most convincingly, the court in W. Greenhouses v. United States, 878 F. Supp. 917 (N.D. Tex. 1995), reasoned that violations of neither CERCLA nor RCRA can support a negligence per se allegation because they are strict liability statutes.  They therefore set no standard of care.  Negligence per se relies on borrowing a standard of care from statute in lieu of applying one established by common law.  No strict liability regime can serve that function.

The decision in Trinity Indus., Inc. v. Greenlease Holding Co., 35 F. Supp. 3d 698 (W.D. Pa. 2014), also relied on by the court in Bristow First, applied somewhat different logic. In that court’s opinion, CERCLA is an environmental statute that is not “tailored to protect a particular class of individuals,” and therefore “does not establish the applicable standard of care for purposes of negligence law.”  This reasoning is easier to quibble with.  The statute requires the remediation of contaminated property, so the occupants of those sites are at least among the group of individuals CERCLA sets out to protect.  Negligence per se claims that attempt to drag CERCLA liability into the realm of tort are likely best challenged not on that ground, but for the absence of a fault-based standard of care in that statute.

We will be following this issue and other legal developments related to the intersection of statutory and common law environmental claims.  Check Environmental Law Next in the future for more information and analysis.

By statute, North Carolina has capped the monetary awards available for nuisance claims related to agricultural or forestry operations. The law, H.B. 467, was designed to protect hog farms and other concentrated animal feeding operations (CAFOs) from substantial judgments in odor nuisance lawsuits.   It limits compensatory damages to the reduction in the fair market value of the plaintiff’s property, if the nuisance is found to be permanent, and the diminution of the fair rental value of the property if temporary. The bill passed over the veto of Governor Roy Cooper.

The limits on awards set by H.B. 467 are cumulative. A subsequent action by the same plaintiff or a successor to plaintiff is restricted to the fair market value of the property, less what was recovered in the earlier lawsuit. The limit applies even to lawsuits against separate defendants arising from distinct operations. H.B. 467 does not, however, place limits on available punitive damage awards or bar any otherwise available injunctive relief.

North Carolina joins a handful of other states that have passed similar legislation in recent years aimed at limiting the amount of damages available for agriculture related nuisance claims.

The legislation is a reaction to an increase in odor nuisance lawsuits in North Carolina and elsewhere in the country. In 2013, more than 400 plaintiffs filed nuisance lawsuits against Murphy-Brown, LLC, a subsidiary of Smithfield Foods, Inc., the largest pork producer in the world. Some of those cases are still pending. An early version of the bill would have had retroactive application and limited recovery in the suits that have not been resolved. That provision, however, was changed before the bill passed.

H.B. 467 is a continuation of legislative efforts to insulate the North Carolina livestock industry. A 2013 bill, S.L. 2013–314, amended the state’s right-to-farm law, which prevents operations from becoming a nuisance as a result of changes in the surrounding community. Agricultural facilities cannot benefit from right-to-farm protections if they undergo a fundamental change from previous operations. But the law broadly exempts several categories of changes – including changes in size and technology – greatly curtailing plaintiffs’ recourse against expanded and updated CAFOs.

Collectively, these changes will make it much more difficult for plaintiffs to recover in nuisance actions against North Carolina CAFOs in the future, and will likely turn off many plaintiffs’ lawyers from investing the time and resources into even winnable cases.

The Office of Management and Budget (OMB) recently released a guidance document on the subject of President Trump’s January 30, 2017 executive order, EO 13771, titled “Reducing Regulation and Controlling Regulatory Cost.”  That executive order garnered a great deal of attention with its bold but simplistic decree that “[u]nless prohibited by law, whenever an executive department or agency publicly proposes for notice and comment or otherwise promulgates a new regulation, it shall identify at least two existing regulations to be repealed.”  OMB’s guidance provides some insight into how that ambitious deregulatory agenda might operate in practice.  Not surprisingly, a closer look at EO 13711 and OMB’s guidance reveals that a significant rollback of the regulatory state is not likely imminent.  Instead, the regulation may push agencies to search out and eliminate minor, archaic regulations that remain on the books but have little or no effect on the regulated community.

EO 13771 requires that any incremental costs associated with a new regulatory action shall be offset by the elimination of existing costs associated with at least two prior regulations.  Although this language appears to require a net reduction in regulatory impacts, OMB has interpreted it in a way that will almost certainly not.

OMB’s guidance provides that “[i]n general, executive departments or agencies may comply with those requirements by issuing two EO 13771 deregulatory actions…for each EO 13771 regulatory action.”  Regulatory actions and deregulatory actions, however, are not two equal sides of the same coin.  Regulatory actions are only “significant regulatory actions as defined in Section 3(f) of EO 12866…” and significant guidance documents.  EO 12866 significant regulatory actions are those that have an annual effect on the economy of over $100 million or have other substantial impacts.  While only significant regulatory actions need to be offset, the “deregulatory actions” that they may be offset by need not be “significant.”

The impact of the requirement that any “new incremental costs associated with new regulation” be offset by the elimination of existing costs is also weakened by OMB’s guidance.  “Incremental costs” are not simply the costs of compliance for the regulated community.  Rather, “total incremental costs” are the sum of all costs minus all “cost savings.” As the guidance recognizes,  “[t}here are several types of impacts that…could be reasonably categorized as either benefits or costs, with the only difference being the sign (positive or negative) on the estimates.”  In other words, in many situations agencies may simply categorize the benefits of the regulatory action as “negative costs” and thereby internally reduce a regulation’s “new incremental costs.” Although the guidance says “agencies should conform to the accounting conventions they have followed in past analyses” when accounting for costs and benefits, an increased labeling of regulatory benefits as “negative costs” may be an appealing way for agencies to work around EO 13771.

Taken together, these two components of the guidance suggest we should expect to see few if any major regulations undone, even as new significant regulatory actions are promulgated.

The requirement that significant regulatory action be tied to some sort of deregulatory action may send agencies looking into the archives to see what outdated, insignificant regulations can come off the books.  There is value to that.  But do not expect EO 13771 to spur the deconstruction of the administrative state the administration has promised.

Nine trade associations, including the American Chemistry Council, the American Petroleum Institute, and the American Forest & Paper Association, have filed a Petition for Review challenging the EPA’s Hazardous Waste Generator Improvements Rule.  The rule was developed by the Obama Administration and was not finalized until after the election, on November 28, 2016.  It is not scheduled to become effective anywhere in the country until May 30, 2017, at the earliest.

The primary purpose of the rule was to reorganize existing regulations applicable to hazardous waste generators to make them more user-friendly.  The rule also clarifies ambiguities in the existing regulations.  It will, however, have significant impacts on some hazardous waste generators.  For more information on substance of the Hazardous Waste Generator Improvements Rule, see our earlier post here.

The Petition for Review does not state which portions of the rule the associations seek to eliminate, nor does it articulate the substantive basis for their challenge. The petitioners did, however, submit comments on the proposed rule, which shed light on which requirements they find most concerning and the arguments they are likely to make before the Court.  In those comments, they listed as the most objectionable part of the rule EPA’s position that any violation of a condition for exemption subjects the generator to all of the applicable rules for non-exempt facilities.  As a result, a generator that runs afoul of a condition for exemption could as a result be subject to penalties for not complying with dozens of requirements that apply to the next higher level of generator, or even those that apply only to treatment, storage and disposal facilities.

The petitioners are also likely to focus their challenge on the portion of the rule that for the first time formally incorporates the requirement that hazardous waste determinations be made at the point of generation, before any dilution, mixing or other alteration of the waste occurs.

We will be following this petition and providing updates on Environmental Law Next as the challenge progresses.

The EPA announced today that it is delaying the effective date of all regulations that have been published in the Federal Register but are not yet effective.  There are 30 such regulations, all of which are now scheduled to become effective on March 21, 2017.  The action was taken to comply with the White House’s “Regulatory Freeze Pending Review” memorandum, which was issued to the heads of all executive departments on the day President Trump was inaugurated.

The 60 day period “is necessary to give Agency officials the opportunity for further review and consideration of new regulations,” according to the rule.

The Agency’s action was taken without public comment pursuant to the good cause exceptions to the Administrative Procedures Act.  5 U.S.C. §553(b)(B) allows the administration to forgo regular notice and comment procedures when they are “impracticable, unnecessary, or contrary to the public interest.”

The rule adding a Subsurface Intrusion (SsI) component to the CERCLA Hazard Ranking System (HRS), which we wrote on two weeks ago, is among those affected by this action.  It was set to become effective on February 8, 2017.

The Agency specifically left open the possibility of delaying implementation of some affected regulations beyond March 21, 2017.

On January 9, 2017, EPA issued a final rule adding subsurface intrusion (SsI) as a component to the Hazard Ranking System (HRS), which is the mechanism that is used for determining the eligibility of sites for CERCLA’s National Priorities List (NPL).  The rule allows the threat of subterranean vapor migration into regularly occupied structures to be considered when deciding if the risk posed by a particular site is great enough to warrant listing.

Previously, the only exposure pathways that EPA and state and tribal organizations that assess sites for inclusion on the NPL were permitted to take into account were ground water migration, surface water migration, air migration and soil exposure. SsI is being folded into the existing soil exposure pathway, which is being restyled as the Soil Exposure and Subsurface Intrusion pathway.

The addition of SsI to the HRS at this time was driven by the development in technologies that allow SsI risks to be quantifiably and comprehensively measured in an efficient matter. EPA has long been aware of the health risks of SsI but could not justify considering it as part of the HRS, which requires the availability of data that can be used to objectively compare thousands of disparate sites.

The rule could result in an increase in the number of sites being listed on the NPL. Sites with an HRS score of 28.50 are eligible and that number will not change.  Under the new rule, however, potential SsI that would in the past have been ignored can add points to a site’s HRS score and there are no corresponding reductions elsewhere.  EPA expects that in practice, however, it will result in a shift in the makeup of sites on the NPL without causing more listings during any particular interval.

The rule will not affect sites that have already been evaluated for addition to the NPL. Sites that are already on, or proposed to be put on, the NPL have already been found to pose enough risk through other exposure pathways to warrant listing or proposal for listing.  Sites that were dropped from the listing process at some earlier stage of evaluation will not be reevaluated.