LATEST INSIGHTS

CERCLA / EPA
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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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Legislation
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Climate Change Litigation: Where Are the Coverage Suits?

There is an interesting question surrounding the present generation of climate change lawsuits currently working their way through the court system. Specifically, where are the duty to defend actions related to these suits?

Background

By way of background, there are two types of climate change lawsuits currently working their way through the courts:

  1. Those filed by government entities that seek to hold energy companies responsible for the costs that government entities are forced to expend in adapting to climate change, and which could be susceptible
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Michigan / New Jersey / Wastewater
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PFAS Contamination Map Underscores Widespread Pollution

In conjunction with the Social Science Environmental Health Research Institute of Northeastern University, the non-profit watchdog organization Environmental Working Group (EWG) published last week an updated version of their interactive map documenting alleged sites of PFAS contamination in the United States. It purports to chart 610 locations in 43 states that have reported known contamination with PFAS chemicals, potentially affecting the drinking water of approximately 19 million people. A prior version of the map issued in July 2018 documented only 172 contaminated sites in 40 …

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CERCLA / Due Diligence
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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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CERCLA / Due Diligence / New Jersey / New York / Pipeline
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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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Clean Water Act / Emissions / EPA / Pipeline / President Trump
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Executive Order 13868 – the Push is on to Maximize Energy Production – Climate Change Impacts and the Local Environment – Nevermind.

On April 10, 2019, the Trump administration published Executive Order 13868, “Promoting Energy Infrastructure and Economic Growth,” which directs the EPA Administrator to, “consult with states, tribes, and relevant executive departments and agencies in reviewing section 401 of the Clean Water Act and EPA’s related regulations and guidance to determine whether any provisions thereof should be clarified to be consistent with the policies described in section two of this order.” The policy referred to in section two states, in relevant part:

It is the …

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General
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Avoiding Surprise: Unregulated Chemicals and Risk Webinar

Co-Editor George Buermann be co-presenting a Perrin webinar titled “Avoiding Surprise: Unregulated Chemicals and Risk” on May 14, 2019 from 2 – 3:30 p.m. EST.

This webinar will cover the following topics:

  • Why some chemicals are regulated
  • The risk paradigm related to chemicals: Presumption of innocence vs. Precautionary principal
  • Possible Risks: Environmental Pollution, Toxic Tort, Nuisance, and Product Liability
  • Understanding how human health/ecological risk is assessed
  • Risk management/mitigation strategies

Learn more and register here.…

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Agriculture / California
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Glyphosate Alert: ATSDR Releases Draft Toxicological Profile and Governments Enact Restrictive Legislation

There have been several notable updates regarding glyphosate. First, and notwithstanding the US EPA’s long maintained position that glyphosate is not likely to be carcinogenic to humans, earlier this month, another US agency, the U.S. Department of Health and Human Services’ Agency for Toxic Substances and Disease Registry (ATSDR), issued a draft report on the Toxicological Profile for Glyphosate.

The draft ATSDR report was reportedly conducted over the past several years. The report states that, among other things, “a possible association between exposure to glyphosate …

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New Jersey / New York / Pennsylvania / Pipeline
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Third Circuit Court of Appeals Halts Construction of PennEast Natural Gas Pipeline, Must Decide Issue of Eminent Domain

Recently, we reported that the United States District Courts for the Middle District of Pennsylvania and the District of New Jersey granted a consortium of natural gas companies the right of eminent domain to take steps towards building the PennEast pipeline to connect natural gas sources in Pennsylvania to parts of New Jersey.

As the next development in this project’s complicated legal track, the Third Circuit Court of Appeals issued a stay to temporarily stop any physical construction from beginning on the pipeline in New …

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EPA / Groundwater Monitoring / Legislation
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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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