Vapor Intrusion Intruding on EPA’s Hazard Ranking System under CERCLA

Verrill Dana LLP
Mathew J. Todaro

February 11, 2016

Originally posted on

Section 105(a)(8)(B) of CERCLA sets forth the outlines of the scoring system used by the U.S. Environmental Protection Agency (the “EPA”) Superfund program to assess and rank the potential and actual threat associated with sites across the country. The scoring system is known as the Hazard Ranking System (the “HRS”). The HRS was originally adopted in 1982, but was subsequently amended in 1990 in response to the Superfund Amendments and Reauthorization Act.

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Going Green? Be Careful – It’s a Jungle Out There!

Vorys, Sater, Seymour and Pease LLP
Daren S. Garcia and Steven A. Chang

February 2, 2016

Allegations of “greenwashing”—generally defined as “the practice of making an unsubstantiated or misleading claim about the environmental benefits of a product, service, technology or company practice” [1]—are on the rise.  A study by TerraChoice, a Canadian-based environmental marketing agency, found in 2010 that approximately 95 percent of products marketed as eco-friendly at that time committed at least one or more greenwashing-related “sins.”[2]  And while some commentators have criticized the accuracy of the TerraChoice report,[3] allegations of greenwashing are becoming increasingly pervasive in the U.S. marketplace and have received growing attention from state and federal regulators, legislators, and consumers alike.

Businesses are scrambling to distinguish themselves from their competitors as the most “eco-friendly.”  A survey by the Boston Consulting Group published in 2010 found that close to seventeen percent of U.S. consumers were willing to pay more for environmentally-friendly products.[4]  And, when compared to previous studies, that number is on the rise.  Another consumer study by BBMG, GlobeScan, and SustainAbility in 2012 found that nearly two-thirds of consumers surveyed in six markets internationally felt “a sense of responsibility to purchase products that are good for the environment and society,” and 70 percent would buy an environmentally-friendly product over a standard one.[5]

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AIG Exits the Pollution Legal Liability Insurance Market

Frenkel & Company
Matt Winters, CRM

February 3, 2016

A recent consequence of AIG’s major restructuring is their exit from the Pollution Legal Liability (PLL) insurance market – a market that years ago they created. Frenkel & Company has been busy notifying our clients that AIG will honor existing policies but that they will no longer underwrite new policies or renew existing policies.  AIG will not be removing itself completely from the environmental insurance market.  Representatives have reported that the company will continue to write Contractors Pollution Liability and Environmental and General Liability Exposure policies.

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If MassDEP Calls…

Foley Hoag LLP
Kathleen M. Brill

February 8, 2016

At a recent meeting of the Massachusetts Department of Environmental Protection’s Waste Site Cleanup Advisory Committee, MassDEP announced that it will soon begin the process of contacting owners of previously closed sites where the available data suggest that trichloroethylene (TCE) levels may be problematic. Back in June of 2014, MassDEP promulgated rules updating its standards to reflect the most recent USEPA toxicity values. MassDEP updated its imminent hazard standards for TCE exposure in indoor air and simultaneously updated its MCP Method 1 soil and groundwater standards and reportable concentrations to reflect the new values.

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US Supreme Court Grants Stay of Clean Power Plan

Kramer Levin Naftalis & Frankel LLP
Charles S. Warren & Theodore E. Lamm

February 10, 2016

On February 9, 2016 a divided United States Supreme Court issued an emergency stay of the Obama Administration’s Clean Power Plan, blocking enforcement of the power plant rules by the Environmental Protection Agency (EPA) until the resolution of pending litigation regarding their legality, which is anticipated later this year.

After EPA announced the final Clean Power Plan in August 2015, a group of states, coal and utility companies and industry groups filed the litigation challenging the rules, which call for a 32 percent reduction in power plant emissions of greenhouse gases (GHGs) nationwide by 2030. The challengers’ central argument is that the required reductions will force states to transition from coal-fired power generation to renewable sources such as wind and solar energy, which is regulation “outside the fenceline” of power plants that the Clean Air Act does not permit. They requested a stay of EPA’s implementation of the rules on the basis that beginning to plan the transition to cut GHG emissions, before the courts had ruled on this argument, would irreparably harm their economic interests.

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