Mitigating Risks of Ethylene Oxide Litigation and Enforcement: EPA Action Under Biden Administration
Prioritizing High-Risk Communities, Reducing EO Emissions, Addressing Environmental Justice Concerns
Course Details
- smart_display Format
On-Demand
- signal_cellular_alt Difficulty Level
- work Practice Area
Environmental
- event Date
Tuesday, May 11, 2021
- schedule Time
1:00 p.m. ET./10:00 a.m. PT
- timer Program Length
90 minutes
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This 90-minute webinar is eligible in most states for 1.5 CLE credits.
This CLE course will guide environmental counsel regarding the current EPA activities and attention to ethylene oxide (EO) litigation and enforcement. The panel will address how to assess and mitigate company risk, particularly using a privileged assessment and other best practices to prepare for litigation against EO emitters.
Ms. Boyer's portfolio includes environmental regulatory counseling; audit oversight and support; supply chain and product stewardship advocacy and compliance; and high-stakes enforcement matters. Her domestic caseload currently includes air and waste matters before the US Department of Justice, the Office of the Attorney General of the State of Texas, the US Environmental Protection Agency (EPA), and the Texas Commission on Environmental Quality (TCEQ). Ms. Boyer's Latin American work involves compliance support and legal project management on a range of regional sustainability issues, including emerging chemicals, circular economy initiatives and climate change.
Ms. Overton represents clients in complex civil and criminal environmental litigation, working closely with technical experts to build strong technical defenses and address other client needs.
Mr. Redd represents clients in complex matters in civil litigation and administrative regulatory proceedings arising under the Clean Water Act, the Safe Drinking Water Act, the Clean Air Act, the Resource Conservation and Recovery Act (RCRA), and the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). His ability to connect with clients and learn the intricacies of their businesses allows him to align his legal counsel with targeted actions that advance clients’ goals.
In late January 2021, the EPA quietly posted status reports on the first wave of 25 "high-risk facilities" identified on its website page devoted to EO measures. At this time, the facility reports are simply status updates that provide information on the additional technical reviews, actions to date, and ongoing or planned community outreach but do not include emissions data or updated risk characterizations for the facilities.
While the immediate significance of notification is unknown and does not appear to have immediate enforcement consequences, the NATA and the EO IRIS risk assessment are already ample fodder for lawsuits by states and the plaintiffs' bar against EO emitters. EPA's anticipated notifications this spring could prompt enhanced scrutiny, particularly if they provide additional emissions data or define community cancer risks.
Counsel and companies should consider conducting a privileged assessment to receive legal advice on risk mitigation. The assessment comprises an expert review of EO processes to identify EO stack emissions and fugitive emissions points, evaluating whether readily available equipment upgrades could reduce EO emissions and including fugitive emissions. Assessment will further look into whether there are any operations in or near an environmental justice community and determining whether additional engagement with the community and other stakeholders is needed, analyzing, under privilege, all compliance monitoring data submitted to agencies. The assessment's ultimate goal is to determine how those data may be viewed in a litigation or enforcement context and concludes with a proactive litigation strategy to reduce risk.
Listen as our authoritative panel provides guidance on the Biden administration's EO litigation and enforcement, including whether the use of a privileged assessment or other steps is necessary for risk mitigation.
- Background on and current status of EO enforcement Initiative
- Litigation risks: state claims and toxic torts
- Environmental justice elements
- Mitigating risks: preventive assessments
The panel will review these and other key topics:
- What is the background on EO enforcement and enforcement status under the Biden administration?
- What is the status of current state claims and toxic tort suits against EO emitters?
- What are the unique aspects of EJ relating to EO claims?
- What are privileged assessments, and when should an EO emitter consider one?
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