Environmental Settlements: Force Majeure Claims Related to COVID-19

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Sidley Austin LLP
Justin A. Savage, Timothy K. Webster and Samina M. Bharmal

March 13, 2020

This article was originally posted here

Environmental settlements — including everything from judicial consent decrees with the U.S. Environmental Protection Agency (EPA) to administrative consent orders with state environmental agencies — typically contain force majeure clauses, especially where the settlements require performance of work with timing requirements, not just payment of penalties or reimbursement of government costs. Thousands of such settlements are in effect around the United States in all areas and media — site remediation, air, water, waste and natural resources. Given the substantial business disruption being caused by COVID-19 worldwide, companies that are parties to environmental settlements should review those settlements now to understand the circumstances under which force majeure claims may be raised.

Force majeure in environmental settlements. Environmental force majeure provisions typically track commercial force majeure provisions, focusing on whether events beyond the control of a company may contribute or has contributed to a delay in performance. Environmental settlements can depart from the commercial world in that they often impose a litany of process hurdles for invoking force majeure.

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PFAS Update: EPA Begins Process of Developing Drinking Water Limits for PFOS and PFOA

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Greenberg Traurig LLP
Steven Barringer and Katie P. Reed

March 3, 2020

On Feb. 20, 2020, roughly one year after announcing its comprehensive per- and polyfluoroalkyl substances (PFAS) action plan, the Environmental Protection Agency (EPA) issued a preliminary regulatory determination under the Safe Drinking Water Act (SDWA) for the two most-studied of the chemicals, perfluorooctane sulfonate (PFOS) and perfluorooctanoic acid (PFOA). This is the initial step in the process of promulgating a National Primary Drinking Water Regulation and imposing an enforceable “maximum contaminant level” (MCL) for the substances – just two of the more than 7,000 so-called “forever chemicals” that are under intense scrutiny from lawmakers and the public. EPA set nonbinding health advisories of 70 parts per trillion for the two chemicals in 2016, and issued interim recommendations for cleanup of ground water contaminated with PFOA and PFOS in December 2019, but Congress and states continue to pressure EPA to develop enforceable drinking water standards for PFOS and PFOA. Meanwhile, states with impacted drinking water supplies are not waiting for EPA; a number have promulgated their own standards, including Vermont and New Jersey, both of which adopted levels much lower than EPA’s recommendations.

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NYS Department of Environmental Conservation issues revised general permit for stormwater discharges from construction activity

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Harris Beach, LLC
Gene Kelly

March 1, 2020

First Published on February 4, 2020

On January 29, 2020, the NYS Department of Environmental Conservation (“DEC”) issued a new and revised State Pollutant Discharge Elimination System (SPDES) General Permit for Stormwater Discharges from Construction Activity (GP-0-20-001), replacing the previous general permit (GP-0-15-002). The new permit, like its predecessor, governs discharges of stormwater to surface waters of the State from construction activities.  It may also authorize discharges of stormwater to groundwater in cases where DEC has determined that a permit is necessary.

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Soil And Fill Recyclable Materials Industry Scrambles To Comply With New Law Aimed To Crack Down On Illegal Dumping

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Archer & Greiner, P.C.
Nicholas J. Lochetta II

March 11, 2020

How New Jersey’s soil and fill recycling businesses will be impacted.

New Jersey Governor Phil Murphy recently signed Senate bill S-1683 (A-4267) extending many compliance requirements for the solid waste industry. This effort to overhaul rules applicable to soil and fill recycling businesses comes after major cases of alleged illegal dumping made headlines in the past year, including a report about a seven-story pile of waste and debris that had been created on property in a residential section of Vernon Township. Soil tests found that the pile contained elevated levels of chemicals which are harmful to human health. This new law will prevent this, and similar situations, from happening again.

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Synergy Environmental – Coronavirus (COVID-19) Message

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U.S. CDC Updates click here

To our Clients, Colleagues, Vendors and Families,

Synergy Environmental, Inc. is committed to working with Federal, State and local authorities to mitigate the spread of the Coronavirus (COVID-19). With this in mind, let us outline the measures we are taking to address the situation at our offices in Montgomery County, PA; Berks County, PA; Lehigh County, PA and Camden County, NJ.

Synergy Environmental, Inc. remains fully operational, with some of our staff in the office and others working remotely. We are asking our employees working in our offices to employ social distancing best practices as well as avoiding gatherings of 10 or more people. We are also utilizing technology, such as chat, text, e-mail and phone communication to lessen the impact of exposure.

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