brownfield cleanup

Answers to 3 Key Questions About the Remediation of Superfund and Brownfield Sites Under President Trump’s Infrastructure Proposal

Buchanan Ingersoll & Rooney PC
Kimberly Arouh,  Edward G. Hild and Howard J. Wein

May 9, 2018

In addition to addressing the repair of roads and bridges, President Trump’s infrastructure proposal addresses a decidedly less popular infrastructure element — Superfund Sites and Brownfield Sites. It is worth looking at how President Trump’s proposed changes to Brownfield and Superfund revitalization may impact future infrastructure proposals. Additionally, with the House of Representatives passing the Brownfields Enhancement, Economic Redevelopment, and Reauthorization Act of 2017 late last year, President Trump’s infrastructure proposal could impact land revitalization before anything else.

 What are the key questions municipalities and companies should be thinking about as they examine the President’s proposed changes to Brownfield and Superfund reform? Here are the top three.What are the biggest changes to current Brownfield and Superfund cleanup funding proposed by President Trump’s Infrastructure Plan?

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Enforcement Principle 2: “Enhancing Cooperative Federalism”

Bracewell LLP
Kevin D. Collins, Jason B. Hutt, Ryan Eletto and Kevin Voelkel

May 7, 2018

On March 12, 2018, Acting Assistant Attorney General for the DOJ’s Environment and Natural Resource Division (“ENRD”), Jeffrey H. Wood, issued a U.S. Department of Justice (“DOJ”) memorandum titled “Enforcement Principles and Priorities” (the “Wood Memorandum”. The Wood Memorandum identified seven enforcement principles for the ENRD. We discussed portions of the Wood Memorandum in our April 19th and April 30th posts. Today, we will discuss the second principle, “Enhancing Cooperative Federalism.”

Enhancing Cooperative Federalism

The third enumerated principle in the Wood Memorandum discusses the relationship between ENRD and state governments in fulfilling environmental enforcement responsibilities.

Federalism is a system of government in which the federal government, the States, tribes, and local governments retain distinct, specified lawmaking powers.

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Ninth Circuit Finds Tax Sale Purchaser Liable under CERCLA

Manko, Gold, Katcher & Fox LLP
Maria C. Salvemini

May 14, 2018

The Ninth Circuit recently reversed a grant of summary judgment by the United States District Court for the Central District of California in California Department of Toxic Substances Control v. Westside Delivery, LLC, No. 16-56558, 2018 WL 1973715 (9th Cir. Apr. 27, 2018), holding that a defendant who purchased real property at a tax sale had a “contractual relationship” with the previous owner “in connection with” the polluting activities, and therefore was not entitled to a third-party defense under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA). In this case, California’s environmental agency, the Department of Toxic Substances Control (DTSC), sought to recover clean up costs from a subsequent owner of the contaminated property and the owner asserted as a defense, recognized under CERCLA, that the contamination was caused by a third party prior to it taking title with whom it had no contractual relationship. The matter before the court was one of first impression in the Ninth Circuit: “Does a defendant who buys real property at a tax sale have a ‘contractual relationship’ with the previous owner of the property within the meaning of CERCLA?” Id. at *1. The court’s affirmative answer will give pause to prospective tax-defaulted property purchasers who may find themselves liable for cleanup costs under CERCLA.

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The Coal Ash Rule Update: EPA Proposes More Flexibility for States and Companies Report Water Data

Steptoe & Johnson LLP
Libretta Stennes and Anthony G. Hopp

March 28, 2018

On March 1, 2018, the US Environmental Protection Agency (EPA) announced the first of two sets of rules that will amend the regulations for the disposal of coal combustion residuals, also known as CCR or coal ash, from electric utilities and independent power producers. EPA proposed more than a dozen changes to the 2015 final CCR rule, and estimated that, if this proposal is finalized, it will save the regulated community between $30-$100 million per year.

EPA Administrator Scott Pruitt issued a statement explaining that the goal of the changes is to demonstrate partnership with states to allow for flexibility to tailor permit programs based on their individual needs. Administrator Pruitt also emphasized the intent to seek “much-needed” public comment. Based on a 2016 Congressional Amendment to the Resource Conservation and Recovery Act and the passage of the Water Infrastructure Improvements for the Nation Act (WIIN Act), the EPA has proposed a series of changes that would potentially allow states more freedom to regulate CCR impoundments with oversight from EPA.

The proposed changes include:

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