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

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.

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EPA Finalizes ACE Rule

Winston & Strawn LLP
Stephanie B. Sebor

July 11, 2019

On July 8, 2019, the U.S. Environmental Protection Agency (EPA) published a notice in the Federal Register finalizing three discrete rulemaking actions. First, EPA repealed the Clean Power Plan (CPP) promulgated by the Obama Administration on the grounds that the CPP exceeded EPA’s rulemaking authority. Second, EPA finalized the American Clean Energy (ACE) rule, which established emission guidelines for greenhouse gas emissions from existing coal-fired electric utility generating units (EGUs). Third, EPA finalized regulations for state plans implementing emission guidelines under Clean Air Act (CAA) section 111(d). Notably, the agency did not finalize proposed changes to the CAA’s new source review regulations. It intends instead to finalize those revisions later as part of a separate rulemaking.

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EPA Dips Toes Into PFAS Drinking Water

Manatt Phelps & Phillips LLP
Jeffrey J. Davidson, David L. McGrath and Craig A. Moyer

April 30, 2019

On April 25, 2019, the U.S. Environmental Protection Agency (EPA) released its Draft Interim Recommendations to Address Groundwater Contaminated with Perfluorooctanoic Acid (PFOA) and Perfluorooctane Sulfonate (PFOS) for public review and comment. The comment period ends on June 10, 2019.

PFOA and PFOS are two substances within the much larger group of per- and polyfluoroalkyl substances (PFAS), man-made chemicals that historically were widely used and presently are used across the country every day in a wide array of consumer and industrial products. Water resources known to have been contaminated by PFOA and PFOS are associated with releases from manufacturing sites, industrial sites, fire/crash training areas, and industrial or municipal waste sites where products are disposed of or applied. PFAS are highly resistant to degradation and are extremely persistent in the environment as well as in organisms, including human beings.

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Environmental Groups Sue EPA to Develop Worst-Case Hazardous Substance Spill Rules

Hunton Andrews Kurth LLP
Timothy L. McHugh

May 9, 2019

In a lawsuit recently filed in the Southern District of New York, a group of environmental plaintiffs allege that, for nearly 30 years, the federal Environmental Protection Agency (EPA) has failed to develop worst-case hazardous substance discharge, or spill, regulations under Section 311(j)(5) of the Clean Water Act (CWA). This suit comes on the heels of EPA’s June 2018 proposal not to develop a general hazardous substance spill program under CWA § 311(j)(1) (a provision related to the Spill Prevention, Control and Countermeasure (SPCC) Rule well known to industrial facilities storing oil) because of the many other programs EPA believes already regulate the prevention and containment of hazardous substance spills. That proposal is expected to be finalized in August 2019 under a 2016 consent decree in which EPA agreed to evaluate the need for general rules governing the prevention and containment of hazardous substance spills. The new lawsuit narrowly focuses on worst-case hazardous substance spills and the need for corresponding facility response plans.

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PFAS UPDATE – EPA’s Action Plan and PFAS Plans for Other States

Synergy Environmental, Inc.
David Robinson, Chris Horan, Brian Loughnane, Brink Young

March 21, 2019

In February, The U.S. Environmental Protection Agency (EPA) announced a new action plan to address a group of emerging contaminants know as per-and polyfluoroalkyl substances (PFAS).

This Action Plan describes  the EPA’s approach to identifying and understanding PFAS; understanding current PFAS contamination, preventing future contamination and communicating with the public about PFAS.

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EPA’s 2018 Environmental Enforcement Results Released

Hunton Andrews Kurth LLP
J. Tom Boer, Samuel L. Brown, Todd S. Mikolop and Alexandra Hamilton

February 12, 2019

Last week, the US Environmental Protection Agency (EPA) released its annual enforcement results for the 2018 fiscal year (ranging from October 1, 2017, to September 30, 2018). The report, prepared by EPA’s Office of Enforcement and Compliance Assurance (OECA), highlights the results of the agency’s civil and criminal enforcement of the nation’s federal environmental laws over the past year. The 2018 results mark the first full fiscal year of enforcement results, including inspections and compliance evaluations, under the Trump administration. A statement in the report from Susan Bodine, the Assistant Administrator for OECA, summarizes EPA’s enforcement priorities, explaining “[i]n fiscal year 2018, we continued our focus on expediting site cleanup, deterring noncompliance, and returning facilities to compliance with the law, while respecting the cooperative federalism structure of our nation’s environmental laws.”

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‘Waters of the United States’ rule from EPA, Corps may make real estate development more easily achievable and less costly

Thompson Coburn LLP
Spenser Owens and Paul Sonderegger

January 14, 2019

On December 11, 2018, the United States Environmental Protection Agency (EPA) and United States Department of the Army, Corps of Engineers (Corps) released for publication a new proposed “Waters of the United States” rule (WOTUS Rule) pursuant to their respective authorities under the Federal Water Pollution Control Act, 33 U.S.C. § 1251, et seq., also known as the Clean Water Act (CWA). If finalized in its current form, the new WOTUS Rule may have a profound effect on real estate developers, open new areas for development and construction, and reduce project costs.

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USEPA and Army Corps Propose New WOTUS Rule

Vorys Sater Seymour and Pease LLP
Ryan D.Elliott

December 11, 2018

This article was originally posted in the Vorys Energy & Environmental Law Blog

On December 11, 2018, USEPA and the Army Corps of Engineers proposed a new rule defining “water of the United States” (WOTUS) subject to USEPA/Army Corps jurisdiction under the Clean Water Act. The proposed rule would replace the 2015 WOTUS rule, which has been the subject of litigation across the country, with a more narrow WOTUS definition. Specifically, the new proposed rules defines 6 categories of waters subject to USEPA/Army Corps jurisdiction:

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EPA contractors

EPA Extends Deadline For PFAS Comments To September 28, 2018

Holland & Knight
Dianne Phillips and Deborah E. Barnard

September 9, 2018

In the wake of the PFAS National Leadership Summit convened by the U.S. Environmental Protection Agency (EPA) on May 22-23, 2018, EPA opened a public docket to solicit comments on per- and polyfluoroalkyl substances (PFAS), a category of man-made chemicals that have been widely used to make products because of their stain-resistant, waterproof and/or nonstick properties. Specifically, EPA seeks to obtain information on ongoing efforts to characterize risks from PFAS, as well as develop monitoring and treatment and cleanup techniques, to inform near-term actions needed to address challenges currently facing states and local communities, and to develop risk communication strategies to address public concerns with PFAS. The original comment deadline of July 20, 2018 was recently extended to Sept. 28, 2018.

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