What’s Hot at EPA and the Texas Railroad Commission

Typically, the dogs days of summer are a slow news time for environmental issues, but this summer has been an exception.

Dog Days of Summer

EPA Update

Hot on the heels (pun intended) of my last post on emerging claims to watch, EPA announced renewed interest in regulating per- and polyfluoroalkyl substances (PFAS).  EPA held a National Leadership Summit in May to discuss how to regulate and remove PFAS in the soil and groundwater from historical releases.

At that summit, EPA announced a 4-step action plan:

  1. Evaluate the need for a maximum contaminant level for various PFAS in drinking water;
  2. Propose designating PFAS as “hazardous substances” under CERCLA (also known as Superfund);
  3. Develop groundwater cleanup recommendations; and
  4. Work with state and federal agencies to develop toxicity values for specific PFAS.

These steps most likely will increase the list of contaminants identified at cleanup sites.  This means that investigation and cleanup costs could increase because additional chemicals will need to be addressed.  In addition, Superfund sites will have additional contaminants identified, leading to additional responsible parties identified as the sources of PFAS.

Texas Railroad Commission Initiative

In June, the Texas Railroad Commission (RRC) released its 2019 Oil & Gas Monitoring and Enforcement Plan.  As part of this plan, the RRC set a goal to maintain its 158 oil and gas field inspectors, and these inspectors have been tasked to meet new, increased inspection targets.  Specifically, all inland wells will be inspected at least once every five years, and wells in bays and offshore will be inspected at least once every two years.  To put this in perspective, in 2017, 155,880 wells were inspected, and the RRC projects 176,000 to be inspected in 2019 – a roughly 13 percent increase.

With this increased emphasis on inspections, I encourage well operators to take advantage of the Audit Privilege program (Tex. Health & Safety Code Ch. 1101) and conduct a self-audit to identify and correct violations before the RRC does.  Under the Audit Privilege program, operators who conduct self-audits can claim immunity from administrative penalties that are voluntarily discovered during the audit, reported to the RRC, and then promptly corrected.

 

Do you have questions or need assistance?  I am here to help.  I have a great deal of experience with self-audits in Texas and elsewhere and also can provide oversight of environmental consultants during site investigations and cleanups.  I also can guide you through the self-audit process, which includes specific notification requirements.  Contact me at cbishop@cbishoplaw.com

Stay cool and watch for those school zones as classes begin in August.

 

What’s the Next Asbestos? Insights From the 33rd Annual Environmental and Emerging Claim Manager Association Conference

In April, I attended a conference on emerging environmental claims sponsored by the Environmental and Emerging Claim Manager Association.  The conference was targeted toward insurance risk managers, but I found it very useful to identify potential future environmental liability for clients and what may be “the next big thing.” 

Below is a summary of the conference’s take on emerging claims:

PFAs

       Possible Sources of PFAS

Technically, PFAs are perfluoroalkyl and polyfluoroalkyl substances. Think of them as chlorinated hydrocarbons but with fluorine attached rather than chlorine.  They are not volatile, resistant to degradation, and soluble in water.  They are present in many consumer products to resist heat, resist stains, resist water, reduce friction, and as surfactants (here is an informative slide from the FluoroCouncil).  Many have been removed from the market (See EPA fact Sheet), but they linger in older products and trash.

Why are PFAS an emerging issue?  PFAS in the environment have generally not been regulated.  There are few regulatory cleanup levels; however, EPA and state agencies have been taking a closer look at these materials.  Expect more agencies to require testing for PFAS in the soil and groundwater as part of a site investigation.

Talc

The plaintiffs’ bar has been initiating a wave of litigation related to talc (baby powder) with some huge verdicts.  There are two theories:  that when the talc was mined, it was contaminated with a vein of asbestos; and talc allegedly causes ovarian cancer.  Although a 2013 study of the Cosmetic Ingredient Review Board found that talc is safe (followed by similar conclusions from the FDA and CDC), since 2013 $806 million has been awarded to plaintiffs in the Johnson & Johnson baby powder lawsuits.  Some predict that the stores that sell talc products (talc is in many products in addition to powder) may be the next group of defendants.

Endocrine Disruptors

Endocrine disruptors are chemicals that affect hormones. Examples of endocrine disruptors include PCBs, dioxin, certain pesticides (e.g. DDT, atrazine), phthalates, BPA plastic and mercury, cadmium, and lead.  However, agencies have reached different conclusions as to whether current data links endocrine disruptors to health effects in humans.  Studies are ongoing and many manufacturers are voluntarily switching to other materials.,  For example, you now see “BPA-free” water bottles.

Confined Animal Feeding Operations (CAFOs)

This topic is not new, but I was grossed out by the statistics, which fortunately were presented after lunch. (Source:  EPA/600/R-04/042 May 2004)

Looking at this figure, a pig generates almost 24 times as much poop as a human does. Yuck.  Anyway, the regulation of discharges from animal feeding is still a big issue.

Prop 65

I think Prop 65 is a ridiculous law that highlights how stupid warnings can get. As background, Prop 65 requires manufacturers and sellers of products in California to include a warning if the product contains a chemical from the list of more than 900 Prop 65 chemicals and include the type of health effect (i.e. cancer or birth defects or other reproductive harm).  What started out as a consumer protection law quickly got out of control, as practically everything (even Starbucks coffee) required a warning.  But the California legislature doesn’t seem to recognize the joke this law has become and instead passed amendments to make it more strict.  A major amendment to this California labeling law takes affect August 30, 2018. One of the more notable changes is that the warning must include the yellow triangle warning symbol.  In addition, the warning must specify at least one chemical per health effect.  No more generic warnings.  Here’s a summary from the State of California.

Perchloroethylene (PCE)

Although PCE (or perc), a common dry-cleaning solvent, has been a contaminant in cleanups for years, we are seeing increased personal injury claims from dry cleaning workers against the PCE manufacturers and suppliers. This increase is thought to be due to EPA’s 2012 designation of PCE as a likely human carcinogen.

Diacetyl

Diacetyl is a flavoring agent used in foods such as popcorn, flavored juices and in “vape juice” to flavor e-cigarettes. Although the science is unclear, the plaintiff attorneys are alleging its consumption (by consumers and factory workers) leads to lung damage.

What’s next?

Are any of these the next asbestos?  None of these appear to have the science or widespread exposure that asbestos did, but companies, their insurers, and their attorneys should be aware of the potential risks.