Talking with others in our industry to find out their environmental priorities are usually much more telling than media headlines.  One of the casualties during this time of pandemic isolation is face-to-face time at meetings and conferences.

Don’t get me wrong, we have had opportunities for dialogue over the past year through industry groups, advisory groups that we lead, and webinars we have done, albeit through the lens of the dreaded “Hollywood Squares” Zoom box. That said, I very much look forward to more opportunities to see you in three dimensions where we can once again think and talk…“outside of the box.”

With the above said, here are some common environmental priorities we have heard over the past 6-12 months.

Per-and polyfluorylalkyl substances (PFAS)

PFAS continues to be the 800-pound gorilla in the room. The ubiquitous nature of this group of chemicals means it touches just about every industry and every person and accordingly, it tops our “common themes” of what we hear out there.

Currently, PFAS are not designated as hazardous substances under CERCLA. It is not likely that the entire “family” of PFAS (some 5,000-plus compounds) will be designated hazardous substances under CERCLA, however, it appears that under the Biden Administration, the two most talked about compounds (PFOA and PFOS) will be.  If/when this happens, it will expand the authority of the USEPA to require sampling and, likely, mitigation and remediation activities related to these PFAS compounds. Many states would be required to adopt these into their cleanup programs.  Additionally, it will require notifications under certain sections of CERCLA for “releases” of these compounds above reportable quantities. Some of the definitions are very broad as to who this may apply.

With no federal Maximum Contaminant Levels (MCLs), there is little to drive widespread assessment and remediation of PFAS. That has not stopped states from making PFAS a focal point of soil and groundwater investigations.  Some states have jumped ahead of the federal government and have developed cleanup criteria for some PFAS compounds.  Michigan, for example, developed MCLS for seven PFAS compounds.  Some of these state-established MCLs are being challenged for the lack of scientific veracity.

We suspect, for the time being, it will be stakeholders, legal action, and state regulators that drive PFAS investigations.

We have written and spoken extensively on this still emerging topic. We also have a PFAS Resources Page.

Vapor Intrusion

Since Former EPA Administrator, Gina McCarthy signed the rule to add a subsurface intrusion (vapor intrusion) component to the Hazard Ranking System (for Superfund Site Listings) on December 7, 2016 (it took effect on May 22, 2017), we have not seen much from EPA on VI.

That said, VI has been a key topic in many of our discussions with clients and colleagues. Many state agencies have developed significant guidance and laws regarding cleanups and mitigation involving the VI pathway. VI has become a key driver in many of our projects including property transactions, subsurface investigations, and site closures.

We are in the process of updating our Vapor Intrusion Reference Guide, and we recently penned a blog regarding our concerns about how regulators in the state of Michigan are handling vapor intrusion.

As with all environmental issues, VI should be approached strategically with technical and legal advice.

A Farm

Environmental issues such as PFAS can impact a wide range of industries, including agriculture (Image by David Mark from Pixabay).

Ag-Environmental Issues

We formed a quasi-advisory group several years ago with senior decision makers in the agricultural-environmental community.  We meet virtually a few times a year, and the common topics in our group discussions include nitrates, water supply, PFAS, and sustainability including climate, carbon management, and renewable fuels.

We also developed an agricultural-environmental resources page on our website.

PFAS and Agriculture

We have spoken on PFAS in agriculture to groups such as the World Dairy Expo and we are seeing more pressure come from processers of dairy down to the producer level.  There have been some high-profile instances of PFAS contamination at farms, and others are likely to develop, as more and more state and federal agencies continue PFAS testing.

We know of at least one state, Maine, that has established an action level in milk (210 parts per trillion). If processors of milk begin regular testing of milk (and this pressure may come from consumers of milk), this pressure will ultimately be felt at the farm level.

We go into much greater detail on this subject in “What Farmers Must Know About PFAS – Part 1 of 2.

Nitrates in Water

Many of our discussions revolved around nutrient management. Specifically, we have a number of clients and colleagues that have been dealing with nitrates in groundwater. One of the issues, at least with nitrates, is a lack of understanding of the source of nitrates. While that may sound like an easy question to answer, it is not. Did it come from current or past operations? Is it from manure ponds or land application of manure? Is it from chemical fertilizer?

These are critical questions, especially when there are health, regulatory, or legal consequences.  Our multi-disciplined approach includes the use of environmental isotopes to help distinguish the source and when that source may have been introduced to the groundwater system.

You can also learn more about our approach in “Tracking Down in the Nitrate Source” in the Journal of Nutrient Management.

A number of our colleagues from the legislative and policy arena are working toward developing and implementing cost effective best management practices and financially incentivized nutrient management methods. Managing nutrients from various sources has been and will continue to be a focus in agriculture as farmers continue to be good stewards of their land.

Environmental Justice

Environmental Justice or EJ has exploded onto the scene since President Joe Biden took office. The genesis of EJ goes back to President Bill Clinton who signed the Executive Order, but it has been the Biden Administration that seems most serious about making this a driving force across multiple agencies (See Will Environmental Justice Factor into Your Next Permit?).

The law firm Holland and Knight sent out a client alert regarding Biden’s approach to EJ saying in part, “[The Biden Administration] identified early actions of the administration that are not only significant in their own right but point to programmatic, regulatory and budget initiatives likely to emerge over the coming months and years.”

As we have stated previously, this could be very significant both in financial and operational consideration for companies operating in EJ Communities – both urban and rural.

These are the key topics that were discussed in my circles during the “great lockdown.”  With society beginning to open back up, we look forward to seeing you soon at a conference, trade show, or over lunch.

Feel free to connect with me on LinkedIn.

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