Navigating Landowners through the Brownfields

The EPA recently updated its vintage standard guidance on CERCLA’s landowner defenses. This was the first update since 2003. The update was explained as an effort to provide clarity.

Historically, under CERCLA, the owner or operator of a contaminated property could be held strictly, jointly, severally and even retroactively liable for releases of hazardous substances. The three statutory liability defenses available under the 2002 Brownfields Amendments to CERCLA provide important liability limitations for landowners who qualify as:

1. Bona fide prospective purchasers (BFPPs)

2. Contiguous …

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Employing New Technology to Clean Up an Old Site

Cleanup work has resumed at a former chemical plant in central Michigan that’s become one of the country’s costliest Superfund sites. However, these efforts come with a new twist. The EPA plans to test a new method to remove soil contaminants in floodplains downstream from a former chemical plant in central Michigan with hopes that it could save millions of dollars on the costs of this ongoing cleanup.

Velsicol Chemical Corp. (formerly Michigan Chemical Corp.) produced various chemical compounds and products at the subject site …

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Reopener Alert: The Erosion of Peace of Mind

While covenants not to sue purport to provide some security to settling parties, in CERCLA actions, reopener provisions, which the EPA includes in most consent decrees, allow for future liability for unforeseen and unknown conditions that arise following completion of the remedial actions. As a result of these reopener provisions, which became required in all but a few limited circumstances after the 1986 CERCLA amendments, parties that settle CERCLA claims live with the risk that new claims could be asserted to address new cleanup demands …

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PFAS Alert: More Bipartisan Legislation Being Introduced

On March 28, 2019, U.S. Senators. Debbie Stabenow (D-Mich.), and Mike Rounds (R-S.D.), and U.S. Representatives. Dan Kildee (D-Mich.) and Jack Bergman (R-Mich.) introduced bipartisan legislation to sample water for per- and polyfluoroalkyl substances (PFAS).

The PFAS Detection Act of 2019 would authorize the United States Geological Survey (USGS) to conduct a nationwide sampling to test surface and groundwater for PFAS pollution, with a special focus on water near sites already known or suspected to be contaminated. The PFAS Detection Act also appropriates $45 million …

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Partially Stripped

On March 15, 2019, the EPA proposed as a Final Rule a scaled down version of the total ban on the use of methyl chloride in paint stripper. The EPA proposed the Final Rule in connection with its administration of the Toxic Substances Control Act (TSCA). Under the scaled down version, methyl chloride is banned from all consumer use paint removers but this toxic chemical can still be used for commercial applications provided there is appropriate training. This version of the Final Rule is a …

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A Trade Off For Clean Water

On February 6, 2019, the U.S. Environmental Protection Agency (EPA) issued its updated Water Quality Trading Policy (Updated Policy). The Updated Policy is an effort to respond to a growing environmental crisis — the over-enrichment of freshwater and coastal ecosystems with nutrients (nitrogen and phosphorus). Sources of nutrients include agriculture run-off, sewage treatment plants, and urban and suburban storm water. Reducing certain nutrients in water is one of the nation’s most challenging environmental issues.

At its most basic principle, “[w]ater quality trading … allows one …

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