August – 2019 – Synergy Environmental Inc

The Devil is in the Details (or Lack Thereof): A Costly Lesson in Allocating Environmental Responsibility in Contracts

Posted on August 22, 2019

Riker Danzig Scherer Hyland & Perretti LLP
Jaan M. Haus

August 7, 2019

A seller of a car wash property located in North Bergen, New Jersey recently learned the hard way that its failure to understand the nature and magnitude of contamination found on its property, and to clearly define in a contract of sale the scope of its obligations associated therewith, can be quite costly. In June, the Appellate Division of the New Jersey Superior Court upheld a trial court’s order directing the seller to fully remediate previously undiscovered environmental contamination at the property in accordance with its contractual obligations, which according to seller, was more than it had bargained for. Hector v. Super Car Wash LLC, et al., Docket No. A-3131-17T1 (N.J. App. Div. Jun. 10, 2019).

States Ratcheting Down on PFAS Compounds, Moving Ahead of Federal Government

Posted on August 22, 2019

Cozen O’Connor
Peter J. Fontaine, Marcia Mulkey

July 31, 2019

New Hampshire has just become the first state to finalize drinking water maximum contaminant levels (MCLs) for PFOS and PFOA, two of the best known and studied PFAS (per- and poly-fluoroalkyl substances), setting levels for those compounds at 15 ppt (parts per trillion) and 12 ppt respectively, effective October 1, 2019. New Hampshire also adopted MCLs for PFHxS at 18 ppt and PFNA at 11 ppt. These actions, which were expeditiously moved through the New Hampshire decision-making processes, now predate final action on New Jersey’s proposed MCLs of 13 ppt for PFOS and 14 ppt for PFOA. New Jersey also already has the first formal PFAS MCL, for PFNA at 14 ppt.

Importance Of Environmental Site Assessment Ever Expanding

Posted on August 22, 2019

McLane Middleton
Michael J. Quinn

August 8, 2019

This article originally ran in the Portsmouth Herald/Seacoast Online

The protection from environmental liability afforded by the Phase 1 Environmental Site Assessment (“ESA”) is well-known to purchasers of land who conduct ESAs before becoming the “owner.” These ESA derived protections now have expanded to cover tenants that were previously at risk.

First, some background. Although the public tends to think of the Superfund statute in connection with the worst hazardous waste sites (remember Love Canal?), it can apply to almost any property where hazardous waste requires remediation. Without causing the contamination, a new owner, a local government, a tenant or a charitable organization could each find themselves ensnared in the law’s strict liability framework by virtue of acquiring property or leasing property with preexisting pollution.

EPA Proposes Sweeping Changes to Clean Water Act Section 401 Water Quality Regulations

Posted on August 22, 2019

Troutman Sanders LLP
Chuck Sensiba, Elizabeth J. McCormick and Morgan M. Gerard

August 13, 2019

On Friday, August 9, the Environmental Protection Agency (“EPA”) unveiled a pre-publication version of a notice of proposed rulemaking (“NOPR”) to clarify state water quality certification (“certification”) procedures under Section 401 of the Clean Water Act (“CWA”) to allow for increased regulatory certainty in federal licensing and permitting activities, and particularly authorization of infrastructure projects. EPA Administrator Andrew Wheeler announced on Friday that the “proposal is intended to help ensure that states adhere to the statutory language and intent of Clean Water Act.” The NOPR proposes substantive changes to the scope of state water quality certification authority under the CWA and the procedures governing these certifications, focusing on the plain language of the statute and at times departing from prior case law precedent.