Amid navigating the ever-evolving COVID-19 variants, federal and state policies in response to the pandemic, and a very active “non-environmental” federal agenda, there has been robust environmental debate over proposed legislation.
The ambitious environmental objectives of the Biden administration have led to some confusion, and many are wondering if and when there will be regulatory clarity.
Environmental policies by their very nature tend to be polarizing. Chief among these are policies regarding climate. However, our focus here will be on 2021 developments regarding Environmental Justice (EJ) and developments regarding regulation of per- and polyfluoroalkyl substances (PFAS).
Environmental Justice
President Biden stated in a January 27th release regarding climate and EJ, “We must deliver environmental justice in communities all across America. The Federal Government must drive assessment, disclosure, and mitigation of climate pollution and climate-related risks in every sector of our economy, marshaling the creativity, courage, and capital necessary to make our Nation resilient in the face of this threat (emphasis added).”
While his focus on EJ was no secret, EJ has been a “constant” in his speeches and memos. Likewise US Environmental Administrator Michael Regan has consistently re-enforced this message in many of his presentations. The question was and to a degree still is – how will this translate into permitting and planning – the real “nuts and bolts” of environmental policy.
Locate and Enforce
In a December 2, 2021 blog, the law firm Faegre Drinker took on the topic of EJ.
“If regulated parties don’t yet know if they are operating in an Environmental Justice (EJ) community, they should find out quickly. The Environmental Protection Agency (EPA) has an online tool EJSCREEN that can identify EJ communities across the country by address. Because the EPA has promised to deliver ‘measurable’ results, you can expect EPA to start focusing its state oversight and direct inspection and enforcement efforts in EJ communities to achieve those results… Further, enforcement actions in EJ communities will likely include requirements for enhanced community outreach and input on company operations.”
As we have stated several times in the past, no reasonable person will argue with the premise of EJ, … fair treatment and meaningful involvement for all people … how this goal is achieved is the larger question.
As we said, EJ must not be brushed aside; this administration is serious about implementing EJ. Again, from the blog by Faegre Drinker, “While climate change may be the most discussed issue among environmental practitioners since the Biden administration took office last January, a close second should have been environmental justice.”
We take a deeper dive into EJ in our July 1, 2021 blog (USEPA Sets Out Steps to Enforce Environmental Justice via Criminal Enforcement).
The Biden Administration is promoting their environmental agenda including, Environmental Justice, the PFAS Roadmap, and a redefinition of WOTUS (Image by JamesDeMers from Pixabay).
PFAS
The environmental elephant in the room has continued to be PFAS. It seems you can find a PFAS seminar or webinar every week. We have written a blog nearly every month on PFAS simply because there have been so many developments. We have a PFAS Resource Page, because we couldn’t possibly write about every PFAS development.
PFAS Proposals
The last time we checked, seven states have developed their own enforceable PFAS standards with more states in the process of developing standards. Of course, what is an enforceable limit in Michigan isn’t the same as New York or Maine.
We (still) need to establish scientifically sound federal maximum contaminant limits so we have certainty with respect to clean up or action levels. What we have seen are proposed legislation such as these just from the spring and summer of 2021.
- R. 2467 PFAS Action Act of 2021
- FDA Issues Update on Recent Activities Pertaining to PFAS in Food
- Toxic Substances Control Act Reporting and Recordkeeping Requirements for Perfluoroalkyl and Polyfluoroalkyl Substances
- Senate Bill ‘‘Filthy Fifty Act’’
- EPA Continues to Take Action on PFAS to Protect the Public
- Memorandum Regarding Per- and Polyfluoroalkyl Substances
- PFAS Action Act of 2021
Probably, the most significant development was EPA’s PFAS Strategic Roadmap. However, in a note of cynicism, Attorney, Robert Bilott (portrayed by Mark Ruffalo in the movie Dark Waters) tweeted the following upon seeing the Roadmap:
“Where is the actual ACTION by @EPA here? It’s been over 20 years since we asked EPA to take enforceable concrete action on #PFAS and still more talk and “plans” to act maybe next year or…the year after that…@DarkwaterMovie #ExposureBook @rightlihood.”
That said, the administration seems focused on the PFAS Strategic Roadmap so it is worth reading and preparing your company accordingly.
PFAS Regulated under the Resource Conservation and Recovery Act
Another aspect of addressing PFAS is regulating PFAS under the Resource Conservation and Recovery Act (RCRA).
We understand the EPA will begin the process to propose listing four PFAS chemicals as “hazardous constituents” in 40 CFR Part 261, Appendix VIII: perfluorooctanoic acid (PFOA), perfluorooctane sulfonic acid (PFOS), perfluorobutane sulfonic acid (PFBS), and GenX.
According to the law firm Crowell Moring, listing these PFAS chemicals in Appendix VIII would have two consequences:
First, the listed chemicals would be subject to RCRA corrective action requirements at hazardous waste treatment, storage, and disposal facilities (TSDFs).
Second, this listing would be the first step necessary toward a future formal rulemaking process under 40 CFR § 261.11(a)(3) to regulate these chemicals as listed hazardous wastes.
These actions in just eleven months of the Biden Administration are as interesting as his predecessor accomplished (in a different direction) during his four years.
Defining WOTUS Published
And if anyone thinks it might slow down next year, a revised definition of Waters of the United States was published on December 7, 2021. We’ll talk more about that in 2022.
If you need assistance with an environmental issue or would like to discuss more proactive measures you might take in the year ahead, contact Matt Schroeder, M.S., P.E. or Jeff Bolin, M.S., CHMM at 248-932-0228.
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