The global transition to clean energy is accelerating. Belatedly, attention is starting to move to mineral sourcing, particularly whether the necessary critical minerals will be available in the United States. A recent Aspen Institute report observed: “As the world transitions to a new energy mix, it will require clean energy technologies that are extremely mineral intensive. Demand for minerals is projected to rise at unprecedented rates and could generate supply shortfalls that will slow, or potentially even derail, global efforts to reach net-zero targets.”
As an Environmental attorney with an M.S. in Environment, Ecology, and Energy, Leah is among those monitoring and researching legislation, counseling on compliance and negotiating remedies on issues including: Clean Air Act, Clean Water Act, Mine Safety and Health Act, Toxic Substance Control Act, and more. Leah also guides clients on renewable energy issues including matters involving the Federal Energy Regulatory Commission (FERC) and state utility commissions.
On September 21, 2022, the Senate passed the Kigali Amendment to the 1987 Montreal Protocol (which had been signed by former President Obama in 2016) by a vote of 69 to 27, reaffirming U.S. commitment to the reduction of hydrofluorocarbons (“HFCs”) through multiple processes (some of which are already causing shifts in import and export markets, as well as in the consumer market).
In the weeks that followed a ransomware attack on a domestic pipeline company, the federal government’s efforts to shore up the cybersecurity posture of America’s critical infrastructure and supply chains, including the oil and gas industry, have garnered increased attention. Historically, the oil and gas sector has not been subject to mandatory cybersecurity regulations, but rather was encouraged to follow voluntary security guidelines that were initially published by the Transportation Security Administration (TSA) in 2011 and revised in 2018. Yet, the industry sector’s geographic size, number of operators/stakeholders within the sector, and its importance to the national economy make the oil and gas industry an attractive target for cyberattacks.
Each of these factors begs the question whether voluntary cybersecurity measures are sufficient to protect this critical infrastructure component? Based on the TSA’s decision to publish the very first Pipeline Security Directive (“Directive”) three weeks after Colonial Pipeline was victimized by a ransomware attack, the answer to this rhetorical question appears to be an emphatic “No.”
Last summer the Office of Environmental Health Hazard Assessment (OEHHA) proposed to amend Proposition 65, also known as the Safe Drinking Water and Toxic Enforcement Act of 1986, to create an exception from the warning requirement for listed chemicals that are formed when food is cooked or heat processed. In essence the proposed rule would treat food products that contain acrylamide as a result of cooking or heating as “naturally occurring” thereby relieving manufacturers of the duty to warn consumers about the presence of acrylamide as long as the levels present are below the OEHHA proposed thresholds.
The U.S. Food and Drug Administration (FDA) recently released a new action plan designed to further reduce exposure to toxic elements, including heavy metals, from foods for infants and young children. This represents the latest development concerning the widespread focus on the levels of heavy metals in baby food. The action plan, titled “Closer to Zero” highlights four steps that the FDA will take over the next three years to reduce exposure to toxic elements “to as low as possible.”
Recent Regulatory Steps
On January 14, 2021, on the eve of President Biden’s inauguration, EPA issued an advance notice of proposed rulemaking, seeking comment on whether PFOA and PFOS should be regulated under the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”) and the Resource Conservation and Recovery Act (“RCRA”). This will likely lead to the designation of PFOA and PFOS as “Hazardous Substances” under CERCLA and RCRA. Such a designation will likely lead to EPA and the state agencies taking more aggressive action to investigate and identify new sites where PFAS may be a concern and also to review the status of existing sites where PFAS may be a concern that was not addressed in previous investigations or response actions and to potentially pursue response actions at such sites. At this moment though there is only the interim policy that EPA provided to assist in addressing PFOA and PFOS groundwater contamination. The comment period on this advance notice just closed and we anticipate a proposed rulemaking in the near future.