Ohio H.B. 168 Creates Superfund-like Protections for Qualifying Purchasers of Brownfield Properties

Vorys Sater Seymour and Pease LLP
Ryan D. Elliott

June 1, 2019

The Ohio House of Representatives recently passed a bill (H.B. 168) that provides “bona fide prospective purchasers” (BFPPs) of brownfield properties with an affirmative defense against state lawsuits seeking to impose liability for the cleanup of such properties. To qualify for the liability protection as a BFPP under H.B. 168, a landowner must satisfy the criteria for a similar defense provided under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Specifically, a BFPP must perform “all appropriate inquiries” (see 40 CFR § 312.20) prior to acquiring the property, and demonstrate “no affiliation” with a liable party. CERCLA also requires the BFPP to satisfy certain obligations after acquiring the property including:

Continue Reading

WOTUS Woes – Federal Judge Remands Obama-Era CWA Rule

Goldberg Segalla LLP
Brandon D. Zeller

June 6, 2019

Last week, a federal district judge in Texas remanded the Obama-era Waters of the United States rule to the EPA and U.S. Army Corps of Engineers (US ACE), citing the agencies’ failure to use proper procedure when publishing the rule.

​The 2015 rule, generally referred to as WOTUS, allowed for a drastic increase to the reach of the Clean Water Act (CWA), in part, by defining “waters of the United States” to include waters adjacent to waters that had traditionally been considered covered by the CWA. Under the WOTUS definition, the CWA’s jurisdiction extended to any area where water is found at any time so long as that water flows on the surface or below the surface to an otherwise recognized WOTUS. Application of WOTUS has been delayed by litigation in courts around the country, and the EPA under the current administration has worked to defang or dismantle the rule.

Continue Reading

Preemption or Pandora’s Box: The Supreme Court Agrees to Review the CERCLA Federal/State Divide

Crowell & Moring LLP
Elliott P. Laws, Peter Gray, Kirsten L. Nathanson and Elizabeth B. Dawson

June 13, 2019

On June 10, in a case that could have a significant impact on CERCLA cleanup efforts across the country, the U.S. Supreme Court granted certiorari in Atlantic Richfield Company v. Christian, a Montana Supreme Court case involving state law claims related to environmental contamination at a Superfund site. By agreeing to hear the case, the Court appears set to resolve the conflict between the Montana Supreme Court and various federal circuits over whether CERCLA preempts or bars private landowners from bringing common law claims for environmental remediation of sites undergoing cleanup under CERCLA. Specifically, the Court will consider:

Continue Reading

SRRA 2.0: New Jersey Introduces Legislation to Amend Site Remediation Reform Act

Greenbaum, Rowe, Smith & Davis LLP
Maura E. Blau and David C. Scott

June 10, 2019

Legislation has recently been introduced in the New Jersey Senate and Assembly to amend the 2009 Site Remediation Reform Act (SRRA). The legislation reflects a collaborative effort led by Senator Bob Smith, a co-sponsor of the Senate bill, working with various stakeholders and the New Jersey Department of Environmental Protection (NJDEP).

The legislation – identical bills S-3862 and A-5293 – is colloquially referred to as “SRRA 2.0.” It is intended to implement “lessons learned” in the ten years since SRRA was enacted, launching the privatization of a large portion of the responsibilities previously handled by NJDEP by creating the Licensed Site Remediation Professional (LSRP) program.

Continue Reading