When Too Much Is Too Much: EPA Declines Further Regulation Over Chemical Manufacturers

The Environmental Protection Agency (EPA) Administrator, Andrew Wheeler, signed a proposed rule under Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) to not impose financial responsibility requirements for facilities in the chemical manufacturing industry on Feb. 10, 2020. A number of environmental advocacy groups spurred this action in August 2014 when they filed a writ of mandamus in the U.S. Court of Appeals for the District of Columbia Circuit, seeking financial responsibility rules in this industry and others.

Section 108(b) of CERCLA addresses the promulgation …

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SCOTUS Ponders Limits of Federal and State Oversight of Hazardous Waste Cleanup

On December 3, 2019, the United States Supreme Court heard oral arguments in Atlantic Richfield Co. v. Christian, which addresses the limits of state and federal oversight of hazardous waste cleanup.

Landowners in Montana obtained a 2017 Montana State Court win, in which the court granted them permission to seek funding for additional cleanup of hazardous waste emanating from a former anaconda site contaminated with arsenic and smelter lead in order to go beyond what the Environmental Protection Agency (EPA) had already directed in …

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Federal PFAS Regulation Around the Corner?

The Senate and House both are considering Per- and polyfluoroalkyl substances (PFAS) regulations this summer. Last month, the Senate began inching closer to consensus on certain regulations. Following two hearings in the Senate Environment and Public Works Committee, the PFAS Release Disclosure Act was considered in committee and filed as an amendment to S. 1790, the National Defense Authorization Act heading to the Senate floor.

The Senate PFAS legislation would require reporting of PFAS releases as part of the Toxic Release Inventory Reporting program, address …

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Tug-of-War: EPA and States Take Opposing Action on 1,4-Dioxane

On June 28, 2019, the EPA released its draft risk evaluation for 1,4-Dioxane. The EPA’s initial determination was that 1,4-Dioxane poses no unreasonable risks to the environment and no unreasonable risks to occupational non-users. However, the EPA also concluded that the chemical presents unreasonable risks to workers in certain circumstances. The same day, the California Department of Toxic Substances Control held a public workshop on 1,4-Dioxane risks, and the department is actively considering further regulation. Just two days earlier, the New York legislature approved a …

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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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Assessing Emerging Contaminant Risks in Real Estate and Other Purchase Transactions

This blog frequently addresses emerging contaminants, most prominently the PFAS compounds and 1,4-dioxane. As these chemicals become more notorious through testing, regulation, and public scrutiny, they’ll likely become more prolific factors in the purchase and sale of real estate. As our readers know, PFAS is almost ubiquitous: it is nearly everywhere (in varying concentrations). As we continue to report on other contaminants, like 1,4-dioxane, it appears the trend is to continue to elevate the focus on these chemicals. So, how should a prospective purchaser, and …

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FERC Ambivalence Leads to Pipeline Approval

In a split decision, a bipartisan four-commissioner panel of the Federal Energy Regulatory Commission (FERC) approved an application by Transcontinental Gas Pipe Line Co. LLC for a construction certificate. Transco plans to upgrade several portions of a pipeline that serves the northeast region of the country, including parts of New York City and New Jersey.

Specifically, the project involves construction of approximately 14 miles of pipeline in Pennsylvania, New Jersey, and Queens County, New York, 23 miles of offshore pipeline near Queens and Staten Island, …

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Senate Follows House’s Lead: Legislation Introduced by the Upper Chamber Aims to Classify PFAS as “Hazardous Substances” Under CERCLA

On March 1, 2019, new legislation was introduced in the U.S. Senate to classify per- and polyfluoroalkyl substances (PFAS) as hazardous substances under Superfund.  A similar bipartisan piece of legislation was introduced in the U.S. House of Representatives in January 2019.

PFAS are a class of fluorinated chemicals that are found in consumer products such as non-stick pans, food packaging, and rain gear, as well as commercial products including firefighting foam. The chemicals do not break down once released into the environment and persist in …

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Squaring the CERCLA: Federal Court in DC Weighs in on Interplay Between Action for Response Costs and Action for Contribution

One of the many pitfalls in Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) compliance is navigating the interplay between cost recovery actions under CERCLA § 107(a) and contribution actions under CERCLA § 113(f). In general, parties who incur costs to respond to environmental contamination gain a cause of action under § 107(a) against other potentially responsible parties (PRPs). On the other hand, parties who have been held liable for cleanup costs through some government action may seek contribution from other responsible parties under § …

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NY’s Highest Court Makes it Clear – NYS DEC Has Authority to Unilaterally Remediate Hazardous Waste Sites

In October 2016, New York’s Appellate Division held that the New York State Department of Environmental Conservation (DEC) overstepped its boundaries when it unilaterally undertook the remediation of FMC’s site in Niagara County, New York. FMC Corp. v. New York State Dept. of Envtl. Conservation, 143 A.D.3d 1128 (3d Dept. 2016).

NY’s highest court – the Court of Appeals – smacked down the Appellate Division’s ruling and reversed it.

The facts:

For over 60 years, FMC has owned and operated a 103-acre property in …

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