PFAS Solution IN (or OUT) of the NDAA?

Greenberg Traurig LLP
Steven Barringer and Katie P. Reed

November 1, 2019

As legislative days dwindle, Congress is in a full sprint to pass the National Defense Authorization Act (NDAA) (related blog post), among several other must-pass bills. Controversial issues, such as border wall funding, military actions related to Iran, PFAS, among others, have bedeviled congressional negotiators since the Senate (S. 1790) and House (H.R. 2500) passed their bills in early summer. As Greenberg Traurig reported in July, H.R. 2500 would designate all PFAS (over 5,000 chemicals) as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), but S. 1790 does not include similar language.

Both bills contain a variety of provisions addressing PFAS pollution, and there is common ground on most of them between the House and Senate packages, and more generally, broad agreement among Republicans and Democrats that legislation is necessary to address PFAS. However, the CERCLA listing is where consensus breaks down.

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EPA Issues New CERCLA Guidance on Liability Protections for Current/Potential Impacted Site Owners

Cozen O’Connor
Amorie Hummel and Marcia Mulkey

September 10, 2019

If you’re back to work navigating the complexities of cleaning up a brownfields site, you’re in luck. The United States Environmental Protection Agency (EPA) issued a 31-page update to “Enforcement Discretion Guidance” for enforcement personnel as it relates to liability protections under the 2002 Brownfields Amendments to the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) this summer. While styled as a memorandum to agency enforcers, this guidance and its predecessor documents are also offered by EPA as “general information to landowners, developers, lenders, investors, or other third-party stakeholders who may wish to become involved with impacted properties.” The guidance is available here.

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Death, Taxes and CERCLA

Taft Stettinius & Hollister LLP
Vivek R. Hadley

July 9, 2019

Benjamin Franklin famously said that nothing in this world is certain, except death and taxes. A recent decision from the Southern District of Ohio ruled that in some circumstances, not even death can save a party from CERCLA liability.

In Garrett Day, LLC v. International Paper Co., No. 3:15-CV-36, 2019 WL 1331680 (S.D. Ohio Mar. 25, 2019), several parties fought over who should pay for the expensive cleanup of a former paper mill that operated for 100 years in Dayton, Ohio. The Site contained several hazardous substances like asbestos, trichloroethylene, polycyclic aromatic hydrocarbons and polychlorinated biphenyls. The current owner of the Site brought a CERCLA claim and a similar state law claim against former owners and operators who may have contributed to the contamination.

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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:

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Trump Administration Superfund Related Activities

Seyfarth Shaw LLP
Rebecca A. Davis, Jeryl L. Olson and Craig B. Simonsen

March 6, 2019

Seyfarth Synopsis: Under the Trump Administration, the U.S. Environmental Protection Agency (EPA) has fully or partially deleted 22 sites from the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) National Priorities List (NPL). This is the largest number of deletions in one year since 2005.

However, the EPA continues to add sites to the NPL, and added five new sites in the Fall of 2018. Two sites are particularly noteworthy as they were added solely due to a subsurface intrusion pathway. Subsurface intrusion is the migration of hazardous substances or pollutants and contaminants from the unsaturated groundwater zone and/or the surficial groundwater into overlying structures. Vapor intrusion is the most common form of subsurface intrusion, but the intrusion also may be in the form of gas or liquid.

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BUILD Act Makes Two Major Changes to CERCLA

Winston & Strawn LLP
Maura T. Levine-Patton and John Fehrenbach

January 10, 2019

In March 2018, the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) was amended by the Brownfield Utilization, Investment, and Local Development Act of 2018 (“BUILD Act”). The Environmental Protection Agency (EPA) solicited comments on the BUILD Act through July 10, 2018 and recently incorporated the Act’s changes in its FY 2019 brownfields grants guidelines. The BUILD Act makes two major changes to CERCLA: it increases funding for brownfield redevelopment grants, and formally extends the bona fide prospective purchaser (BFPP) statutory defense to tenants of contaminated sites, which previously had been a policy of EPA. Applications for grants to address sites contaminated by hazardous substances, pollutants, or contaminants under the new BUILD Act guidelines are due to EPA by January 31, 2019.

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Recent Third Circuit Decisions Help Define Contours of CERCLA Liability

Riker Danzig Scherer Hyland & Perretti LLP
Alexa Richman-La Londe

January 7, 2019

Reprinted with permission. © 2019 Riker Danzig Scherer Hyland & Perretti LLP

The United States Court of Appeals for the Third Circuit recently handed down two noteworthy decisions on environmental liability under the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”). One involves the appropriate methodology for allocation of cleanup costs between two responsible parties based on equitable factors; the other involves whether a new owner of contaminated property is responsible for governmental response costs incurred prior to its purchase of the relevant property. Both set new precedent that should be of interest to the regulated community.

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Third Circuit Holds Current Owners May Be Liable for Past Remediation Costs Under CERCLA

Manko Gold Katcher & Fox
Shelby Hancock

October 10, 2018

Last week the Third Circuit held that the owner of a remediated site could be liable under CERCLA § 107(a) for environmental response costs incurred before it acquired the property. Pa. Dep’t of Envtl. Prot. v. Trainer Custom Chem., LLC., __ F.3d __, No. 17-2607, 2018 WL 4844077 (3d Cir. 2018). In its opinion reversing the district court’s grant of partial summary judgment in advance of trial, the court concluded that “all costs” in § 107(a)(4)(A) means an owner is “indeed liable for all response costs, whether incurred before or after acquiring the property.” Id. at *5. Our blog post discussing the district court’s decision, 204 F. Supp. 3d 814 (E.D. Pa. 2016), can be found here.

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Potential Parent Company Liability Under CERCLA Based on Shared Services Model

Jones Day
Jane Borthwick Story and Mary Beth Deemer

September 12, 2018

In Short

The Situation: At least one court since Bestfoods has held that an organizational model whereby a parent company provides shared or centralized services to subsidiaries can result in direct liability for the parent company under CERCLA.

The Result: Parent companies may face direct liability under CERCLA depending on the structure of their shared services models.

Looking Ahead: Companies may want to consider how the structure of their shared services practices may impact their potential CERCLA liability.

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The CERCLA Redevelopment Focus: Will There Be an Impact on Remedy Selection Decisions and Natural Resource Damage Claims?

Hunton Andrews Kurth LLP
Jeffrey N. Martin

July 5, 2018

The United States Environmental Protection Agency (EPA) concluded a series of eight Superfund Listening Sessions between May 21 and June 18 to explain a number of initiatives to reform the Superfund program and promote the cleanup and redevelopment of contaminated sites. The PowerPoint presentations used in these sessions can be accessed here. While informative, the sessions and PowerPoint slides used by the speakers also raise some interesting questions about potential changes in the remedy selection process and the restoration of damaged natural resources.

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