The Nickel Report

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.

On May 3, 2022, the Railroad Commission of Texas (Railroad Commission) voted to approve three actions that represent a major step forward in facilitating the deployment of carbon capture, use and sequestration activities (CCUS) in Texas. Specifically, the Railroad Commission approved:

• Publication of proposed amendments to its rules implementing the state program for geologic storage of anthropogenic CO₂ and incorporating federal requirements;
• Submittal to the US Environmental Protection Agency (EPA) of a pre-application to gain regulatory authority over Class VI underground injection control (UIC) wells that are used for injection of CO₂ into deep subsurface formations; and
• A request that the Governor formally ask EPA for Class VI UIC well program approval. [i]  

On May 18, 2022, in York et al. v. Northrop Grumman Corp. Guidance and Electronics Co. Inc. et al., No. 21-cv-03251 (W.D. Mo.), a federal district court dismissed state-law tort claims for alleged groundwater contamination, finding that they were preempted by an existing Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) consent decree. The court rejected the plaintiffs’ argument that two CERCLA “savings clauses” allow their claims to proceed.

On April 12, 2022, the United States Environmental Protection Agency (EPA) announced a sweeping proposed ban on ongoing uses of chrysotile asbestos, the only form of asbestos known to still be imported into the United States. EPA’s proposed ban is the first risk management rule issued under the Toxic Substances Control Act (TSCA) since the 2016 Lautenberg Act overhauled the statute to give EPA new powers to review and regulate existing chemicals.

In line with the Biden administration’s focus on expanding offshore wind energy, the Bureau of Ocean Energy Management (BOEM) is seeking public review and comments on the draft Morro Bay Wind Energy Area (WEA) environmental assessment (EA) by Friday, May 6, 2022. The EA for the Morro Bay WEA “considers potential environmental and socioeconomic effects from issuing offshore wind energy leases and related site characterization and assessment activities.” Written comments may be filed or shared virtually at the April 14 or April 19 meeting.

On April 5, 2022, the California Office of Environmental Health Hazard Assessment (OEHHA) published a second 15-day notice of modification to its proposed Proposition 65 safe harbor “short-form” warning regulations.  If adopted, the amendments would significantly impact businesses’ use of the short-form warnings.

On April 6, 2022, the United States Environmental Protection Agency (EPA) published a proposed rule in the Federal Register that would build on its existing Cross-State Air Pollution Rule (CSAPR) program by limiting further the emission of nitrogen oxides (NOx) from stationary sources located in 26 states. 87 Fed. Reg. 20,036 (Apr, 6, 2022). The proposal would implement EPA’s 2015 National Ambient Air Quality Standards (NAAQS) for ozone of 70 parts per billion by imposing Federal Implementation Plans (FIPs) on specified states pursuant to its authority under the “good neighbor” requirements of section 110(a)(2)(D)(i)(I) of the Clean Air Act. This provision requires upwind states to prevent sources located within their borders from contributing significantly to nonattainment or interfering with maintenance of the NAAQS in downwind states.