Environmental update

Environmental update

December 12, 2019 | By Andrew Skroback in New York

The United Nations said in a report in late November that there is a significant gap between the world’s current combined pledges to cut greenhouse gas emissions and the reductions that many scientists agree are required to avert the most disastrous effects of climate change.

Average global temperatures are currently between 0.8 to 1.2 degrees Celsius above pre-industrial levels, or between 1.4 to 2.2 degrees Fahrenheit higher on average.

Global greenhouse gas emissions continue to rise. The UN report said the global average temperature is projected to rise 3.9 degrees Celsius from pre-industrial levels.

The report warns that such increases would bring “widespread, catastrophic effects,” such as extreme and longer lasting heat waves, extended drought and wildfire seasons, more frequent intense weather, and sea level rises that will threaten coastal cities.

The 2016 Paris Agreement on climate change set a goal of limiting the increase in global temperatures to no more than 2.0 degrees Celsius (3.6 degrees Fahrenheit).

Current country pledges to limit greenhouse gas emissions would need to triple to meet that goal.

The Paris Agreement is an accord within the United Nations Framework Convention on Climate Change relating to greenhouse gas emissions mitigation, adaptation and the financing of those efforts.

As of February 2019, 194 countries and the European Union had signed the agreement, with 186 of those countries and the EU having ratified it.

Each country signing committed to determine, plan and regularly report on its efforts to limit climate change. The agreement has no mechanism to force any country to set a specific reductions target by a specific date, but each target is supposed to go beyond previously pledged targets.

The UN held its annual climate meeting in Madrid from December 2 through 13 with a goal of completing detailed rules to govern international carbon markets. Once those rules are agreed to, the table would arguably be set for a 2020 meeting that would focus on getting participants to agree to more stringent emissions reductions targets.

While the four largest greenhouse gas emitters — China, the United States, the EU and India — have all ratified the agreement, President Trump announced his intention in June 2017 to withdraw the United States from the agreement. The earliest effective date of a US withdrawal is November 4, 2020, the day after the next US 
presidential election.

The EU disclosed at the Madrid conference that it will probably miss its target for reducing greenhouse gases by 2030. It had pledged a 40% reduction, but said it would still achieve a 30% reduction in the next decade compared with 1990 levels.

According to the UN, global emissions must decline by 7.6% every year between 2020 and 2030 to keep global warming within safe bounds.

Clean Air Act

The US Environmental Protection Agency has decided not to reconsider its current approach to when industrial facilities must calculate and report emissions from potential major modifications that might lead to higher air emissions. New Jersey asked EPA to scrap the exemption 10 years ago.

The state argued that the current approach makes it harder to determine which industrial facilities in the state should be subject to strict air pollution controls.

In general, the current EPA new source review program requires industrial facilities to install new pollution controls each time a company adds new generating capacity or expands existing operations.

Under current EPA rules, if planned modifications to an industrial facility are not expected by the owner to hit the major new source threshold, the owner is only subject to emissions recordkeeping and reporting requirements if there is a “reasonable possibility” that the predicted emissions from the modification will equal or exceed 50% of significant threshold levels for any pollutant under the Clean Air Act. EPA adopted this rule in December 2007.

EPA Administrator Andrew Wheeler said in a letter to the New Jersey attorney general in November that EPA will not reconsider the 2007 rule.

New Jersey filed suit over the rule in February 2008 and also formally petitioned EPA to get rid of it.

New Jersey complained that the rule leaves it to “plant operators to determine for themselves whether their emissions call for installation of new pollution controls.”

The New Jersey lawsuit has been in limbo in federal court while waiting for EPA to decide whether it would reconsider the rule on its own.

Wheeler said in his November letter: “The EPA does not agree with New Jersey’s assertion that the final rule is procedurally defective, and, therefore, the EPA is not required to convene a proceeding for reconsideration under the Act.”

New Jersey could act on its own. If the state thinks additional reporting is required, Wheeler said, it has “discretion to adopt state regulations that would require sources in its jurisdiction to keep such records in circumstances not addressed in the 2007 EPA rule.”

The lawsuit may now resume.


EPA and federal lawmakers are currently considering separate efforts to regulate the two most common per- and polyfluoroalkyl substances, known as “PFAS.”

PFAS (pronounced PeeFAS) are a group of fluorinated chemicals commonly added to a wide variety of consumer products to make them non-stick, waterproof and stain-resistant. Such products include carpets and upholstery, waterproof apparel, floor waxes, non-stick cookware, camping gear, fast-food wrappers, cleaners, dental floss and firefighting foams for putting out fuel fires.

PFAS have been found in drinking water in many areas of the country.

Regulations could require listing the substances as “hazardous substances” under the Comprehensive Environmental Response, Compensation and Liability Act, more commonly known as the Superfund law, and the setting of nationwide drinking water standards.

The listing of certain PFAS as hazardous substances under the Superfund law could impose significant cleanup liability for responsible parties at sites across the country. Even where regulators considered cleanups of other substances to be complete, a listing could reopen past settlements, requiring responsible parties to do additional remediation where regulated PFAS are found, but were not addressed.

Setting of drinking water standards would require water utilities to incur substantial ongoing costs to test and possibly treat water. Nationwide drinking water standards could force them to spend billions of dollars to comply with testing and treatment requirements over just the first five years.

A proposed regulation addressing the two most common chemicals was sent to the Office of Management and Budget for review in early December. An EPA press release suggests that, in addition to perfluorooctanoic acid, or “PFOA”, and perfluorooctane sulfonic acid, “PFOS,” two other chemicals will be also included for evaluation, but it did not name them.

While this suggests that EPA may follow up its PFAS action plan to evaluate PFOA and PFOS and may ultimately set drinking water cleanup standards for the substances, the timing remains uncertain.

The Safe Drinking Water Act requires EPA to select chemicals from its contaminant candidate list and determine whether to regulate them via a national primary drinking water regulation, possibly by setting a maximum contaminant level.

EPA had said it would decide whether to regulate the two most common PFAS by the end of 2019. Any proposals are now not expected until sometime in the first half of 2020, with final action thereafter following public comment.

Several bills circulating in Congress would force EPA to 
move faster.

At issue is whether Congress should require EPA to set drinking water standards for the two PFAS by a date certain.

When a maximum contaminant level standard is set, all water systems are required to test for it twice a year. To date, EPA has only set a drinking water health advisory.

EPA Administrator Wheeler said in late September that EPA is strongly opposed to Congressional efforts to impose federal cleanup standards for any class of chemicals.

Meanwhile, a case before the federal courts could set precedent on whether consideration of PFAS must be included in the mandatory five-year EPA review of Superfund sites that the regulators have been treating as fully remediated.

The US Air Force and Michigan regulators are fighting over whether a Superfund five-year review should address PFAS even though the chemicals were not a subject of the original cleanup plan. The resolution of the case could set precedent for similar cleanup reviews at other sites.

The Air Force is required to review how effective the cleanup was at a Superfund site every five years. However, it argues that it is only required to review the cleanup as it relates to the contaminants at issue in the original cleanup plan.