27 November 2018

Sidley Environmental Trends

Topics discussed this week include:

  • Fishermen’s trade association sues energy companies for alleged climate-change-related harms
  • EPA releases draft toxicology assessments for two PFAS compounds
  • EPA announces Cleaner Trucks Initiative
  • EPA finalizes amendments to the petroleum refinery sector MACT 1, MACT 2 and NSPS regulations
  • EPA proposes rule intended to clarify reporting requirements under CERCLA and EPCRA associated with air emissions from animal waste at farms

Fishermen’s trade association sues energy companies for alleged climate-change-related harms. The Pacific Coast Federation of Fishermen’s Associations, Inc., recently filed suit in California state court against multiple energy companies asserting state law nuisance, strict liability and negligence claims, alleging the defendants’ actions contributed to climate change, harming commercial fishermen, especially crab fishermen. The complaint alleges that the companies actively continued to produce, and promote the use of, fossil fuels, despite alleged knowledge of the potential harms associated with those fuels, leading to increased water surface temperatures, algal blooms and other negative effects on the fishing industry. Although the suit’s focus on alleged harm to the fishing industry is novel, the suit is one of several climate-change-related tort lawsuits brought in federal and state courts against energy companies in recent years, including suits by municipalities such as the City of Oakland and the City of New York. Federal district courts have dismissed both the Oakland and New York cases in response to motions to dismiss, although both decisions are being appealed.

EPA releases draft toxicology assessments for two PFAS compounds. The United States Environmental Protection Agency (EPA) recently released draft toxicology assessments for two sets of per- and polyfluoroalkyl substances (PFAS) for public comment. The draft toxicology assessments are for hexafluoropropylene oxide (HFPO) dimer acid and its ammonium salt (known as GenX) and perfluorobutane sulfonic acid (PFBS) and the related compound potassium perfluorobutane sulfonate. The assessments developed proposed numerical toxicity values, known as oral reference doses, associated with potential noncancer human health effects following oral exposure for these specific compounds. EPA will accept public comment on these draft toxicology assessments through January 22, 2019. Due to their nonstick properties, PFAS compounds have been used as coatings in cookware, as surface coatings in paper and cardboard, in firefighting foam and in other products. EPA has recently begun to focus more on PFAS compounds, including holding a summit in May at which various regulatory approaches were discussed. EPA had issued drinking water health advisories in 2016 for two other PFAS compounds, perfluorooctanoic acid (PFOA) and perfluorooctane sulfonic acid (PFOS). The draft assessment suggests that PFBS is less toxic than GenX, PFOA and PFOS and that GenX is less toxic than PFOA and PFOS.

EPA announces Cleaner Trucks Initiative. EPA announced its Cleaner Trucks Initiative, which will lower the existing Clean Air Act Title II standard for nitrogen oxide (NOx) emissions from on-highway, heavy-duty trucks and engines while streamlining compliance and certification requirements. EPA intends to issue a proposal for the revised standard in early 2020. EPA last revised the NOx standard for on-highway heavy-duty trucks and engines in 2001. Toward the end of the Obama administration, EPA had announced its intention to revise the standard in response to various petitions for a rulemaking, but it was unclear if the agency would move forward on that front prior to this announcement.

EPA finalizes amendments to the petroleum refinery sector MACT 1, MACT 2 and NSPS regulations. EPA recently issued a rule finalizing revisions to the petroleum refinery National Emission Standards for Hazardous Air Pollutants (referred to as Refinery Maximum Achievable Control Technology (MACT) 1 and Refinery MACT 2) and to the New Source Performance Standards (NSPS) for Petroleum Refineries, issued under Title I of the Clean Air Act. The final rule alters portions of the regulations’ work practice standards, recordkeeping and reporting requirements. It also sets December 26, 2018 as the compliance deadline for standards for maintenance vents that apply during periods of startup, shutdown, maintenance or inspection for sources constructed or reconstructed on or before June 30, 2014, which is later than the August 1, 2017, deadline in the Obama-era rule. The revisions are in response to various petitions for reconsideration from both industry and environmental nongovernmental organizations.

EPA proposes rule intended to clarify reporting requirements under CERCLA and EPCRA associated with air emissions from animal waste at farms. EPA recently proposed a rule exempting air emissions from animal waste at farms from release reporting requirements under Section 103 of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) and Section 304 of the Emergency Planning and Community Right-to-Know Act (EPCRA). CERCLA Section 103 requires the immediate notification of releases of hazardous substances in reportable quantities to the federal National Response Center. EPCRA Section 304 requires the immediate notification of releases of CERCLA hazardous substances or EPCRA extremely hazardous substances in reportable quantities, at facilities at which hazardous chemicals are produced, used or stored, to state and local emergency management agencies. Title XI of the Consolidated Appropriations Act, 2018, known as the Fair Agricultural Reporting Method Act, exempted air emissions from animal waste at farms from CERCLA Section 103’s release reporting requirements. The proposed rule would thus add this statutory exemption to the CERCLA regulations and add a corresponding exemption to the EPCRA regulations. This topic has a lengthy regulatory history, with EPA finalizing similar regulatory exemptions in 2008, which the D.C. Circuit struck down in a 2017 case. Comments on the proposed rule are due on December 14.

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