Considerations for Environmental Due Diligence

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Breazeale Sachse & Wilson LLP
John B. King

April 15, 2019

Due diligence conducted when acquiring assets in a commercial transaction, whether the assets include property with existing operating facilities or undeveloped property on which a facility is to be constructed, is absolutely essential to ensuring the property does not contain unknown environmental liabilities and is suitable for the buyer’s intended use. Of course, the level of due diligence and the time and money spent on it will vary depending on the size and nature of the acquisition. But it should never be less than enough to obtain sufficient information about potential liabilities and future uses so a buyer may make an informed decision.

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Just In Case You Wondered Whether PFAS Are Really A Big Deal

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Foley Hoag LLP
Seth D. Jaffe

April 8, 2019

If you were thinking that PFAS were important, but you’ve been unsure just how big a deal they are, you need look no further than the Statewide PFAS Directive issued by the New Jersey Department of Environmental Protection. Some of my colleagues in New Jersey may correct me, but I think that the Directive may be the most wide-ranging order I’ve ever seen issued by an environmental agency. (And I know that NJDEP denies that the Directive is in fact an “order.” Can you say “walks like a duck”?)

The Directive represents NJDEP’s attempt to frame a comprehensive approach towards the contamination resulting from the use of PFAS in New Jersey. That’s all well and good. Nonetheless, it’s not obvious that significant concerns about PFAS are enough to justify this Directive. Here are some of the provisions that might give one pause.

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Dust In The Wind: Seventh Circuit Opens Door for Citizen Suits Under RCRA

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Barnes & Thornburg LLP
Louise Dyble

April 11, 2019

The Seventh Circuit recently slapped down a decision dismissing a citizen suit for environmental contamination, throwing court doors wide open to private plaintiffs seeking injunctive relief under the Resource Conservation and Recovery Act (RCRA).

With its March 6, 2019, decision in Liebhart v. SPX Corporation, the Seventh Circuit joined eight other circuits in adopting a lenient interpretation of RCRA’s requirement that plaintiffs show “imminent and substantial endangerment to health” from contamination. The decision empowers federal courts in Illinois, Indiana and Wisconsin to issue orders “to eliminate the risks posed by toxic waste.”

The controversy started with the demolition of a former manufacturing facility located on the same block as three residential properties owned by William and Nancy Liebhart in Watertown, Wisconsin. Prior to 1971, the factory produced power transformers containing Polychlorinated Biphenyls (PCBs), a substance subsequently banned by the EPA. After the factory shut down completely in 2005, SPX commissioned a site study that revealed traces of PCBs throughout the building, most significantly in its concrete floors. Demolition commenced in 2015 under an EPA-approved “self-implementing cleanup plan.”

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President Trump Jumpstarts LNG Development and Transportation

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Holland & Knight LLP
Dianne R. Phillips

April 12, 2019

On April 11, 2019, President Trump signed an Executive Order on Promoting Energy Infrastructure on Economic Growth which included provisions related to updating regulations linked to facilities which handle liquefied natural gas (LNG) and regulations associated to transporting LNG by rail. As described in prior blog posts, regulatory changes are needed before LNG can be transported by rail tanker cars under applicable Hazardous Materials and Carriage by Rail regulations, 49 C.F.R Parts 172, 173 and 174, absent a special permit. Although the Association of American Railroads (AAR) filed a petition for rulemaking with the U.S. Department of Transportation, Pipeline and Hazardous Materials Safety Administration (PHMSA) in January 2017 and PHMSA responded on May 7, 2018, there hasn’t been much movement on the subject. With this Executive Order, President Trump has ordered the Secretary of Transportation to “propose for notice and comment a rule, no later than 100 days after the date of this order, that would treat LNG the same as other cryogenic liquids and permit LNG to be transported in approved rail tank cars” and further “finalize such rulemaking no later than 13 months after the date of this order.” No surprise that sides are already forming about what some are calling “bomb trains” so we can expect a lot of interest in this particular rulemaking.

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