Emerging Chemical Issues – Ethylene Oxide (Part 3 of 5): Challenges to the IRIS EtO URE

Today’s alert looks at the current status of challenges to the IRIS EtO URE and EPA’s related rulemaking proceedings.

Sterilizers have been one of the most widely publicized sources of EtO, and have taken the brunt of enforcement actions and plaintiffs’ lawsuits based on EtO exposures in the past couple years since publication of the 2014 NATA. But to date, formal regulatory challenges and litigation surrounding the validity of the IRIS EtO URE itself have focused on the chemical manufacturing industry.

The ACC was the first to attempt to formally challenge EPA’s use of the IRIS EtO URE. As soon at the 2014 NATA was published on Sept. 20, 2018, the ACC filed a Request for Correction under the Information Quality Act with EPA, requesting that EPA change its risk assessment for EtO based on subsequent studies, but to date EPA has not disposed of ACC’s request or revisited the IRIS EtO URE. Continue Reading

Emerging Chemical Issues – Ethylene Oxide (Part 2 of 5): A Patchwork of State Regulation

Federal law generally sets a floor, rather than a ceiling, when it comes to emission reduction regulations, and thus, when assessing a facility’s compliance and legal risks it is important to track state and local laws, regulations, and enforcement activities. This is particularly important for EtO, where several states have gotten ahead of EPA in setting state specific EtO risk thresholds and regulatory requirements.

As noted in our prior alert, public attention was drawn to EtO with the publication of the 2014 NATA in 2018, which identified many census tracts throughout the nation that merited further analysis for potential cancer risk associated with estimated EtO emissions. Because the existing federal NESHAP standards for industrial sources of EtO were all based on EtO unit risk estimates from before the 2016 IRIS EtO URE, and because EPA did not immediately propose to revise federal NESHAPs in light of the 2016 IRIS EtO URE and the 2014 NATA, many states have felt pressure to impose additional regulations on top of federal regulations. But in the absence of guidance from EPA on the meaning of the IRIS EtO URE and how to use it in the regulatory context (rather than in the preliminary risk screening context it was developed for), the result has been a complicated and contradictory patchwork of regulations that vary from state to state. Three basic approaches have emerged. Continue Reading

Emerging Chemical Issues – Ethylene Oxide (Part 1 of 5): Why It Matters

In the past two years, hundreds of lawsuits have been filed against companies based on their emissions of a chemical called ethylene oxide (often referred to as “EtO” or “EO”). Multiple facilities that handle EtO also have been shut down on a temporary or permanent basis, and many others have been subjected to administrative enforcement actions or been required to amend permits and install millions of dollars of additional emission control equipment even when the companies were already in compliance with federal emission standards for EtO. Many of these actions have been predicated on the perceived health risks associated with EtO based upon a risk assessment performed by the U.S. Environmental Protection Agency in 2016 that has been heavily criticized in the scientific community.

Over the coming days, we will cover recent regulatory developments and emerging industry and regulatory challenges. But first, some background is in order; namely: what is EtO, why the sudden interest from regulators and plaintiffs, and is this relevant to your business. Continue Reading

Leasing Lawsuits Hit Their Stride Multiple Plaintiffs Seek Orders to Reinstate Federal Oil and Gas Lease Sales

Consistently throughout his presidential campaign, President Biden repeatedly indicated his intention to “ban[] new oil and gas permitting on public lands and waters.”[1] Only one week after taking office, on Jan. 27,  the president issued Executive Order 14008, representing the administration’s first major step toward that goal. Among other provisions, the Executive Order directs the Secretary of the Interior to “pause new oil and natural gas leases on public lands or in offshore waters.”[2] The president did not offer any time limit for this “pause,” providing only that new lease sales are to be suspended “pending the completion of a comprehensive review and reconsideration of Federal oil and gas permitting and leasing practices.”[3] Leadership at the Department of the Interior has subsequently confirmed that the administration has set no deadline for completing the review Executive Order 14008 requires.[4]

Consistent with Executive Order 14008’s directive, the Bureau of Land Management has since cancelled all oil and gas lease sales that were scheduled to be conducted in the first two quarters of 2021. Not surprisingly, challenges to these cancellations materialized almost immediately. On the same day the pause was announced, industry groups Western Energy Alliance and the Petroleum Association of Wyoming filed suit in Wyoming federal district court.[5] Eight weeks later, on March 24, 2021, numerous states filed two more lawsuits: (i) the State of Wyoming filed a challenge to the cancellation of onshore lease sales in the District of Wyoming;[6] and (ii) a coalition of 14 states filed a challenge to the cancellation of both onshore and offshore lease sales in the Western District of Louisiana.[7] Among other contentions, each suit alleges that the cancellation of oil and gas lease sales violates a statutory mandate in the Mineral Leasing Act providing that “[l[ease sales shall be held for each State where eligible lands are available at least quarterly.”[8] Continue Reading

The Importance of Knowing The Right Way to Prepare Legal Descriptions in a Right-of-Way Transaction in Texas

Under Texas law, a blanket easement is “[a]n easement without a metes and bounds description of its location on the property.”[1] It is also considered an easement that covers the entire servient estate.[2] Although some states require that the easement area be smaller than the entire servient estate, Texas does not.[3] For that reason, blanket easements are used in Texas because they grant the easement holder the ability to modify the location of pipelines on the property, and as a result, provide more flexibility to the easement holder in choosing the manner in which it may exploit or transport resources.[4]

Blanket easements can be problematic for the landowner of the burdened property because if he or she has improvements on or other uses for the burdened property, those improvements or other uses of the landowner will likely be subject to the rights held by the holder of the right-of-way. To avoid this issue, landowners would be wise to define a fixed easement area and have the company survey it, along with any temporary work spaces or construction areas. This type of easement, which is more commonly used today, is known as a specific easement. Continue Reading

Understanding Missouri v. Biden: The Benefits and Costs of Carbon Emissions

On Feb. 26, the Biden administration announced that, for at least the rest of the year, federal agencies will conduct regulatory and environmental analyses assuming that the global “social cost” of emitting carbon dioxide is $51 per ton. Called the “Social Cost of Carbon” for short, this calculation will be directed primarily toward agriculture and fossil fuels. The announcement creates the climate policy conundrum of 2021.

The announcement’s technical paper explains the assumptions and uncertainties. It also makes clear the $51 value does not consider the social benefit of consuming oil and gas. With similar assumptions and uncertainties, and just for the sake of illustration, a highly simplified value of that benefit can be calculated in dollars per ton. The global “social benefit of carbon” is $5 million per ton. (See below.)

This calculation is the author’s, not that of the states suing President Biden. But the illustration shows that ignoring benefits when quantifying costs might skew decision-making. The failure of the social cost of carbon to consider the benefits is what lies at the heart of the states’ suit. Missouri v. Biden, No. 4:21-cv-00287-SPM (E.D. Mo. filed March 8, 2021). The states claim that, by design, the social cost of carbon skews the analysis to justify increased federal authority over areas of regulation traditionally left to the states. Continue Reading