Category: CERCLA

CERCLA / Emerging Issues
Posted by:

Increase of Climate-Related Weather Events Continue to Threaten Superfund Sites

The U.S. EPA’s Superfund program began in 1980 in response to serious health concerns arising out of a school and neighborhood in upstate New York that was built atop a toxic-waste dumping ground now infamously known as Love Canal—the nation’s first Superfund site. Since then, a list of more than 1,750 sites have cropped up and made it to the Superfund program’s National Priorities List.

Turning to weather-related events—the Government Accountability Office (GAO) warned in a 2019 report that 945 Superfund sites remain vulnerable to …

Continue Reading
CERCLA / Emerging Issues / Ohio
Posted by:

Bona-Fide Improvement: Ohio Adds BFPP Defense to Hazardous Waste Liability

This summer, Ohio implemented a change in its hazardous waste law that will be welcomed news to purchasers of brownfields. The new law adds a bona-fide prospective purchaser (BFPP) affirmative defense that will make those who qualify for its protections “immune to liability” to the state under the state’s environmental laws. Additionally, the new defense applies retroactively to pending causes of action that started before the law’s effective date.

The concept of a BFPP defense is familiar to purchasers of commercial property, as a similar …

Continue Reading
CERCLA
Posted by:

SCOTUS Plays Red Light, Green Light in CERCLA Decision

The Supreme Court issued a landmark CERCLA decision in Atlantic Richfield Co. v. Christian. Most notably, the court held that CERCLA did not deprive Montana state courts of jurisdiction over state law trespass, nuisance, and strict liability claims brought by owners of land within a Superfund site, even where the landowners sought a cleanup that went beyond the remediation plan approved by the EPA. However, the court also held that the landowners were potentially responsible parties under CERCLA, and therefore the landowners’ remediation plan …

Continue Reading
CERCLA
Posted by:

There is No Full and Final Settlement Under CERCLA

The U.S. Supreme Court this week ruled in Atlantic Richfield Co. v. Christian that state law claims are still valid against landowners who have entered into settlements with the EPA pursuant to CERCLA. In this case, Atlantic Richfield Co. (Arco) had purchased the Anaconda Smelter site in Montana in 1977, where smelting had been taking place since 1884. In 1983, the site was designated as a Superfund site, and Arco worked with the EPA for approximately 35 years to remediate it. In 2008, landowners within …

Continue Reading
CERCLA / EPA
Posted by:

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 …

Continue Reading
CERCLA
Posted by:

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 …

Continue Reading
CERCLA / Clean Water Act / Water Contamination
Posted by:

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 …

Continue Reading
California / CERCLA / EPA
Posted by:

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 …

Continue Reading
CERCLA / EPA
Posted by:

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 …

Continue Reading
CERCLA / Due Diligence
Posted by:

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 …

Continue Reading