Mitigating Risks of Ethylene Oxide Litigation and Enforcement: EPA Action Under Biden Administration

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.