Property Owner’s Liability Under CERCLA for Unpaid Remediation Subcontractor

Duane Morris LLP
Stanley A. Martin

March 27, 2014

A federal appeals court ruled that a landowner is not liable under CERCLA1 for amounts due to a subcontractor, when the owner had already paid the prime contractor for cleanup work.  The prime contractor, fully paid, failed to make payment to subs and then went out of business.  Although the sub argued that CERCLA required the property owner to pay for cleanup, the court held (decision available here) that the property owner had discharged its obligations under CERCLA when it fully paid the prime contractor for the cleanup work.

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EPA Finalizes Revised Effluent Limitation Guidelines for Construction Site Stormwater Discharges

Thompson Hine LLP
Michael L. Hardy, Andrew L. Kolesar and Erin M. Minor

April 7, 2014

On March 6, 2014, EPA published a final rule (New Rule) that revises the effluent limitation guidelines (ELGs) for stormwater discharges from construction sites with one or more acres of land disturbance. The most significant change between the New Rule and the prior version of the rule, which was issued by EPA in 2009 (2009 Rule), is the deletion of controversial numeric limits for turbidity. However, EPA has left the door open to include such limitations in a future rulemaking by reserving rather than eliminating the sections addressing turbidity. The New Rule, which will take effect on May 5, 2014, was promulgated pursuant to a settlement agreement between EPA and various industry groups that challenged the 2009 Rule.

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Regulating Stormwater – The Never Ending Saga

LeClairRyan
Thomas G. Echikson

March 31, 2014

As you could probably tell from the number of posts I’ve written on the subject, stormwater fascinates me. Not that I particularly like rain or snow (particularly after this winter!). But, as an environmental concern and legal and policy issue, there are few subjects that can match both its simplicity – we all know what stormwater is – and its complexity – figuring out how to effectively control it has proven to be one of the more intransigent problems confronting EPA and the states.  In fact, one of the very first cases I worked on over 25 years ago involved stormwater, and, despite some progress, the legal and policy debates over stormwater continue today.  Given my interest in the topic, my next few posts are going to focus on stormwater.

What is it about stormwater?  To begin, it’s well-established that stormwater discharges – both point and non-point – are significant contributors to surface water quality impairment.  Major water bodies, such as the Chesapeake Bay and the Mississippi River, are not achieving water quality standards to a significant extent because of the contribution of stormwater containing nutrients and other pollutants.  That stormwater presents an environmental problem that still needs to be addressed is difficult to dispute.

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It’s All Significant: Proposed US EPA Rule to Expand the Definition of “Waters of the United States” Under the CWA

Squire Sanders
Matthew Rojas

April 1, 2014

As part of an effort to streamline implementation of the Clean Water Act (CWA), US EPA and the Army Corps of Engineers (ACOE) released a proposed rule that will establish defined categories of waters that qualify as “waters of the United States” under the CWA and will be subject to its jurisdiction. The proposed rule is a direct response to the US Supreme Court’s decisions in Solid Waste Agency of Northern Cook Cty. v. Army Corps of Engineers, 531 U.S. 159 (2001) and Rapanos v. United States, 547 U.S. 715 (2006). Newly protected categories include wetlands and seasonal streams that are upstream from navigable waters, substantially expanding the current scope of CWA jurisdiction. The Agencies believes that these resources share a significant nexus with downstream waters and that protecting them is essential to preserve water quality nationwide.
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EPA Approves ASTM E1527-13 Phase I ESA Standard for All Appropriate Inquiry Environmental Law Update

Quarles & Brady LLP
George J. Marek, Lawrence W. Falbe, Lauren Harpke and Raphael F. Ramos

January 6, 2014

On December 30, 2013, the United States Environmental Protection Agency (“EPA” or the “Agency”) approved the recent American Society for Testing and Materials (“ASTM”) Standard E1527-13 as sufficient to satisfy All Appropriate Inquiry (“AAI”) for potential liability protections under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”). 78 Fed. Reg. 79,319. As a result, E1527-13 now stands as the baseline for Phase I Environmental Site Assessments (“Phase I ESAs”) and any individuals performing Phase I ESAs should ensure that their assessments are in compliance with that standard going forward.

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Changes to NJDEP Impact to Groundwater Soil Screening Levels

Synergy Environmental, Inc.
David Robinson, LSRP

December 16, 2013

The NJDEP has issued updated Impact to Groundwater Soil Screening Levels (IGWSSL).  The changes are based upon an Update of the default Dilution-Attenuation Factor (DAF) used for calculating Impact to Groundwater Levels. The NJDEP has updated their guidance document and Excel spreadsheet which is posted at:

http://www.nj.gov/dep/srp/guidance/rs/

The new spreadsheets now include the ability to calculate impact to groundwater soil remediation standards for new (unlisted) chemicals.

Updates to NJDEP Classification Exception Area and NJDPES Discharge to Groundwater Guidance:

The Classification Exception Area (CEA) Guidance document and NJPDES Discharge to Ground Water (DGW)  Technical Manual for the Site Remediation Program (SRP) are outdated and the NJDEP will not update them in the near future.  The NJDEP has issued some updated information regarding both of these documents on their associated web pages.

These web pages describe the document content and generally which parts of each are still relevant or are particularly inconsistent with current requirements.  The web pages provide the currently applicable regulatory citations regarding topics covered in each document  (e.g., public notifications, the DGW proposal and permit by rule) and provide links to other locations on the Site Remediation Program website where relevant information regarding these topics is provided.

The introductory web page for the CEA guidance can be found at:

http://www.nj.gov/dep/srp/guidance/cea/cea_guide.htm.

The introductory web page for the NJPDES DGW Manual can be found at:

http://www.nj.gov/dep/srp/guidance/njpdes/

David Robinson is an LSRP in our Cherry Hill, NJ Office

How Private Equity Sponsors Are Using Responsible Investing to Drive Value

King & Wood Mallesons
Mark McNamara, Mark McFarlane, Michael Barker, Jason Watts,
Lee Horan and Alex Elser

European Union, USA
December 11, 2013

Many private equity sponsors are now proactively managing the environmental, social and governance (ESG) risks in their investment portfolios. This greater focus results not only from a desire to undertake sensible risk management but also from the realisation that such an approach can increase the underlying value of their portfolios. Some private equity sponsors are even going the step beyond and using proactive responsible investing as a way to differentiate themselves in the fundraising market.

In this article we highlight some of the market-leading practices in relation to responsible investing, outline what constitutes responsible investing and the benefits of taking active steps to address ESG issues, and discuss some of the challenges for private equity sponsors in quantifying and reporting on the benefits of their responsible investing programmes.

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Blazing a Path Out of the Morass: Opportunities to Shape Clean Water Act Jurisdiction Rule

Wiley Rein, LLP
John A. Hodges

December 5, 2013

Stung by court decisions curbing expansive jurisdictional claims over bodies of water pursuant to the Clean Water Act (CWA), the U.S. Environmental Protection Agency (EPA), and the U.S. Army Corps of Engineers (Corps) are undertaking rulemaking to clarify the still murky jurisdictional situation.  Determining CWA jurisdiction is key to whether land developers must obtain “dredge and fill” discharge permits under Section 404 of the CWA.  It is expected that EPA and the Corps will propose a broad approach to jurisdiction.  In light of the high stakes, developers and other affected persons should consider participating in the rulemaking to help craft a reasonable approach.  An important EPA public meeting will take place from December 16 to 18.

Draft EPA Report and Draft Rule

A critical ingredient in the rule making will be an EPA report on connectivity of water bodies, currently in draft form. Taking the draft report into account, EPA and the Corps have prepared a draft proposed rule on CWA jurisdiction, which they have submitted to the Office of Management and Budget (OMB) for review.  Leaks indicate that the proposed rule takes a broad approach to CWA jurisdiction.  There is an opportunity for interested parties to comment on the draft report, and there will be an opportunity to comment on the proposed rule when it is issued.  The final rule will take into account public input, including input on the draft report.

Dueling Jurisdictional Approaches under Rapanos  

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USEPA’s Updated Regulatory Agenda: Say Hello to Old Friends and a Few New Faces

Squire Sanders
Katy M. Franz

December 9, 2013
USA

USEPA released an updated regulatory agenda on November 27, 2013.  The Fall 2013 agenda contains only a handful of new rulemaking proposals, indicating that USEPA will be focused in 2014 on completing the long list of regulatory actions already in progress.  Despite this renewed focus, USEPA has further delayed the proposal and finalization of several significant rulemakings, including the following:

  • The proposed review of the National Ambient Air Quality Standard (NAAQS) for Lead has been delayed from January 2014 to July 2014;
  • The proposed implementation rule for the 2012 NAAQS for PM2.5 has been delayed from February 2014 to May 2014;
  • Proposed effluent standards for shale gas extraction have been delayed from April 2014 to October 2014; and
  • The final cooling water intake structure rule has been delayed from July 2013 to January 2014.

Noticeably absent from the Fall 2013 agenda is…

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CERCLA, RCRA, and Vapor Intrusion: Does What Happens in Vegas Really Stay in Vegas?

Baker & Hostetler LLP
María R. Coor

November 14, 2013

In Voggenthaler v. Maryland Square LLC, 724 F.3d 1050 (9th Cir. 2013), the defendants argued that contamination that happened in Vegas, stayed in Vegas, and therefore the Commerce Clause barred the application of CERCLA.  The district court disagreed.  The Ninth Circuit affirmed the district court’s decision, joining the Second Circuit and the Eleventh Circuit in upholding the applicability of CERCLA as constitutional even when contamination and/or its direct impacts are local.  See United States v. Olin Corporation, 107 F.3d 1506 (11th Cir. 1997); Freier Westinghouse Electric Corporation, 303 F.3d 176 (2d Cir. 2002).

Contamination from a former dry cleaning operation located at a Las Vegas shopping center prompted the Nevada Division of Environmental Protection (“NDEP”) to remediate the site.  During this remediation, NDEP learned of potential vapor intrusion stemming from the contamination and notified nearby homeowners.  Two district court actions and several appeals followed.  A group of homeowners filed a RCRA citizen suit seeking an injunction ordering the owners of the shopping center and the operators of the former dry cleaning facility to clean up the contamination.  NDEP filed an action seeking recovery of incurred and future costs under CERCLA and state law.  The district court awarded plaintiffs summary judgment in both cases.

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