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

Prioritizing High-Risk Communities, Reducing EO Emissions, Addressing Environmental Justice Concerns

Recording of a 90-minute CLE video webinar with Q&A


Conducted on Tuesday, May 11, 2021

Recorded event now available

or call 1-800-926-7926
Course Materials

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.

Description

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.

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Outline

  1. Background on and current status of EO enforcement Initiative
  2. Litigation risks: state claims and toxic torts
  3. Environmental justice elements
  4. Mitigating risks: preventive assessments

Benefits

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?

Faculty

Boyer, Madeleine
Madeleine Boyer

Principal
Beveridge & Diamond

Ms. Boyer's portfolio includes environmental regulatory counseling; audit oversight and support; supply chain and...  |  Read More

Overton, Evynn
Evynn M. Overton

Principal
Beveridge & Diamond

Ms. Overton represents clients in complex civil and criminal environmental litigation, working closely with technical...  |  Read More

Redd, Julius
Julius M. Redd

Principal
Beveridge & Diamond

Mr. Redd represents clients in complex matters in civil litigation and administrative regulatory proceedings arising...  |  Read More

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