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EPA’s Superfund Task Force Releases Recommendations

Winston & Strawn LLP
John Fehrenbach

December 13, 2017

On May 22, 2017, three months into his new role as head of the Environmental Protection Agency (EPA), Administrator Scott Pruitt established a “Superfund Task Force” (Task Force) to evaluate the Superfund program and provide recommendations on how the Agency can improve the program.

The Superfund program was established pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) with the goal of reducing risk to human health and the environment posed by sites contaminated with hazardous substances. CERCLA requires that the National Oil and Hazardous Substances Pollution Contingency Plan (NCP) identifies the sites posing the greatest risk within the United States. As of June 21, 2017, there are over 1,300 sites on the National Priorities List (NPL), a fact which Pruitt was “astounded to learn.” “Many of these sites have been listed as Superfund sites for decades, some for as many as 30 years,” Pruitt noted. “We can—and should—do better.” Pruitt directed the Task Force to come up with a plan to make the program more efficient and effective.

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Court Rules that Gas Station Defendants are not Off the Hook for “Primary Restoration” Natural Resource Damages

Riker Danzig Scherer Hyland & Perretti LLP
Jaan M. Haus

December 6, 2017

Reprinted with permission. © 2017 Riker Danzig Scherer Hyland & Perretti LLP

In a case before the United States District Court for the District of New Jersey, the New Jersey Department of Environmental Protection (“NJDEP”) seeks to recover natural resource damages (“NRD”) from a number of gas station defendants (the “Gas Station Defendants”) for the alleged discharge of Methyl Tertiary Butyl Ether (“MTBE”) into the groundwater at five gas station sites in northern and central New Jersey. NJDEP v. Amerada Hess Corp., Docket No. 15-6468 (Nov. 1, 2017). This past summer, the Gas Station Defendants sought leave to file a motion for partial summary judgment on the issue of whether the NJDEP could recover primary restoration natural resource damages. Under the New Jersey Spill Compensation and Control Act (the “Spill Act”), primary restoration damages are available to the NJDEP for the implementation of a primary restoration plan that would restore the environment to pre-discharge conditions more quickly than would occur through a remediating party’s proposed remediation program. The Gas Station Defendants contend, however, that such damages are only available where the NJDEP can establish that there is an “injury or threat to human health, flora or fauna” that provides a reasonable basis or justification for expedited restoration over and above the Gas Station Defendants’ planned remediation. While the Gas Station Defendants argued that a heightened legal standard should apply to claims for recovery of primary restoration damages, the District Court refused to adopt this view and determined that the burden of proof proposed by the Gas Station Defendants was not found in the Spill Act.

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Rising Environmental Enforcement in the Food and Drug Sector: How to Stem the Tide for Your Facility

Kelley Drye & Warren LLP
Paul Sarahan

December 6, 2017

Food and drug manufacturing facilities are an increasing target for federal and state environmental enforcement actions. Recent enforcement actions have highlighted the extent to which these facilities are subject to a host of environmental requirements applicable to a facility’s operations, including stormwater and wastewater discharges; air emissions; risk management planning; spill prevention plans; and waste management. While an overview of some of these recent enforcement actions provides some perspective as to some of the issues that need to be addressed to ensure a facility’s compliance with applicable state and federal environmental regulations, there are proactive steps a company can utilize to identify and address compliance issues, while mitigating or even eliminating potential enforcement consequences.

Stormwater and Wastewater Management

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EPA Declines To Issue CERCLA Financial Responsibility Rules For Hardrock Mining Industry But Leaves Open What It Might Do For Other Industries

Pillsbury Winthrop Shaw Pittman LLP
Anthony B. Cavender

December 7, 2017

Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), commonly referred to as Superfund, was enacted in December 1980, and Section 108(b) provides that the Environmental Protection Agency (EPA) shall promulgate, no later than December 11, 1985, financial responsibility requirements for classes of facilities—designated by EPA—consistent with “the degree and duration of risk associated with their production, transportation, treatment, storage or disposal of hazardous substances.” Despite this directive, EPA has not issued any financial responsibility rules under Section 108(b). This record of inaction prompted a lawsuit demanding compliance with the law.

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