Without “Hazardous Substance” Designation, Pennsylvania PFAS Case Against Navy Seeking Cleanup Fails

Sidley Austin, LLP
Samuel B. Boxerman and Aaron L. Flyer

January 21, 2020

The original Blog can be accessed here:

As discussed last week, the U.S. House of Representatives recently passed a bill designating specific per- and polyfluoroalkyl substances (PFAS) — perfluorooctanoic acid (PFOA) and perfluorooctane sulfonic acid (PFOS) — as “hazardous substances” under the federal Comprehensive Environmental Response Compensation and Liability Act (CERCLA). But unless and until the designation becomes federal law, the viability of PFAS-related cleanup claims under state law depend on whether the individual state has designated PFOA and PFOS as hazardous. Last week, in Giovanni, et al. v. Department of the Navy, the U.S. District Court for the Eastern District of Pennsylvania dismissed a case bringing a claim under Pennsylvania’s Hazardous Sites Cleanup Act (HSCA) for alleged PFOA and PFOS contamination from facilities owned and operated by the U.S. Navy. The court found that the plaintiffs could not maintain their claim because these substances have not been designated as hazardous by either the federal or state government, as required by HSCA.

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PFAS Update: EPA Progress Under PFAS Action Plan

Robinson & Cole LLP
Megan E. Baroni

December 5, 2019

Earlier this year, we wrote about EPA’s PFAS Action Plan, the agency’s blueprint for addressing contamination and protecting public health from per- and polyfluoroalkyl substances (PFAS). The PFAS Action Plan, released in February 2019, details a number of actions EPA plans to take with regard to PFAS, including time frames for implementation. EPA has been making some progress towards implementation, albeit not always on the timeline set forth in the Plan. Below are a few updates since February:

Toxics Release Inventory (TRI) Listing for Certain PFAS Compounds

Yesterday, EPA published notice that it is considering a rule to add PFAS compounds to the list of toxic chemicals subject to reporting under section 313 of the Emergency Planning and Community Right-to-Know Act. This listing would require certain industry sectors to annually report releases of these chemicals. The purpose of the TRI program is to provide the public with information, or, as EPA puts it, “A Right to Know, A Basis to Act.”

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Worth Another Look: Regional Greenhouse Gas Initiative

Buchanan Ingersoll & Rooney PC
Lauren Orazi, Matthew T. Fine

December 2, 2019

On October 3, 2019, Governor Tom Wolf issued Executive Order – 2019-07- Commonwealth Leadership in Addressing Climate Change through Electric Sector Emissions Reductions. The executive order instructs the Pennsylvania Department of Environmental Protection (DEP) to develop a rulemaking package to “abate, control or limit carbon dioxide emissions from fossil-fuel-fired electric power generators” consistent with the Regional Greenhouse Gas Initiative (RGGI).

DEP has until July 31, 2020 to present the proposed rulemaking package to the Pennsylvania Environmental Quality Board (EQB). The EQB is a 20-member independent board that adopts DEP regulations. The Board includes 11 state agencies, five members of the Citizens Advisory Council, and four members of the Legislature.

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USMCA Vote In U.S. Congress Appears Imminent After Agreement To Change Provisions On Enforcement, Labor, Environment, And Pharmaceuticals

Hogan Lovells
Warren H. Maruyama, Juan Francisco Torres Landa, Jonathan T. Stoel, H. Deen Kaplan, Robert D. Kyle, Ivan Zapien, Chandri Navarro, Craig Lewis, M. Jorge Yáñez V., Jared R. Wessel and Patrick de Lapérouse

December 11, 2019

Implementing legislation to enact the United States-Mexico-Canada Agreement (USMCA) is expected to be introduced as early as the week of 16 December following extensive discussions between leaders of the U.S. Congress and the U.S. Administration. House Speaker Nancy Pelosi (D-CA) and House Ways & Means Chairman Richard Neal (D-MA) announced a breakthrough in negotiations regarding certain provisions of the USMCA that was signed 30 November 2018. The two Democratic Congressional leaders cited changes to enforcement, labor, environment, and pharmaceutical chapters in the agreement in announcing the decision to bring implementing legislation to enact USMCA into U.S. law.

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New Jersey Appellate Court Blesses Municipal Court Review of Environmental Liability

Riker Danzig Scherer Hyland & Perretti LLP
Matthew A. Karmel

December 4, 2019

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

While most people think of municipal courts as resolving motor vehicle tickets and minor property disputes, the New Jersey Department of Environmental Protection (“NJDEP” or the “Department”) has been using the municipal court system for several years to enforce violations of laws and regulations relating to the investigation and remediation of contaminated sites in New Jersey pursuant to its “Municipal Ticketing Initiative.” (See our March 9, 2017 blog post titled “NJDEP to Expand Site Remediation Municipal Ticketing Initiative.”) However, some, including Alsol Corporation, have questioned whether a municipal court has jurisdiction to decide if an entity has violated environmental laws and, if so, to impose a penalty on the entity for such violation. In its recent decision, the Appellate Division gives its blessing to the Municipal Ticketing Initiative and determines that municipal courts have the power to adjudicate liability and enforce penalties pursuant to the New Jersey Spill Compensation and Control Act and the Site Remediation Reform Act. See New Jersey Department of Environmental Protection v. Alsol Corporation, __ N.J. Super __ (App. Div. 2019).

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Changes to PADEP’s Management of Fill Policy

Synergy Environmental, Inc.
Brian Loughnane, P.G

November 19, 2019

PADEP’s Management of Fill Policy is set to take effect on January 1, 2020 here are some thoughts from a Pennsylvania Licensed Professional Geologist

Land owners, real estate developers, excavation contractors, municipalities, environmental consultants and lenders need to take note of the upcoming changes that will be occurring with the Pennsylvania Department of Environmental Protection’s (PADEP’s) Management of Fill Policy (Fill Policy).   On November 2, 2019 PADEP published a notice within the PA Bulletin that the new Management of Fill Policy has been finalized.  The policy is effective as of January 1, 2020.  Projects and activities throughout Pennsylvania that involve earth disturbance or excavation will be impacted by the new Fill Policy.

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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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SCOTUS Hears Oral Arguments in Major Clean Water Act Case

Michael Best & Friedrich LLP
Scott C. Beightol, John A. Sheehan, Leah Hurtgen Ziemba and Samuel M. Mitchell

November 8, 2019

The U.S. Supreme Court appeared divided following recent oral arguments on Wednesday, November 6, 2019 in a closely followed environmental case which will have major implications on the scope federal regulatory power under the Clean Water Act (CWA).

In County of Maui, Hawaii v. Hawaii Wildlife Fund, the justices are considering whether the CWA requires a permit when pollutants originate from a point source but are conveyed to navigable waters by a nonpoint source, such as groundwater. The outcome of Maui will have a significant impact on a wide-array of industries and private individuals by either subjecting millions of pollutant sources to the CWA’s permitting requirements for the first time or enshrining what environmentalists consider a loophole in the CWA. Although several justices seem to reject the county’s argument that the federal government should only regulate pollution direct from a point source, the justices appear divided as to the limits of such regulation.

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NJDEP Changes Policy for Applicability of the ISRA De Minimis Quantity Exemption

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

November 6, 2019

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

Certain business transactions involving property in New Jersey now risk facing expanded environmental obligations if the parties do not follow an administrative policy that has been quietly revised by the New Jersey Department of Environmental Protection (“NJDEP”). The environmental obligations at issue arise under the New Jersey Industrial Site Recovery Act (“ISRA”), which requires owners and/or operators of “industrial establishments” in New Jersey that cease operations or undergo a transfer of ownership or operational control to conduct an environmental review of and, if necessary, remediation of the industrial establishment prior to closing the transaction. However, ISRA allows those responsible for “industrial establishments” to avoid complying with the substantive requirements of ISRA as long as the establishment qualifies for a De Minimis Quantity Exemption (“DQE”). A DQE is available if an industrial establishment only has small (i.e., de minimis) amounts of hazardous materials present on site, and must be approved by the NJDEP based on an application submitted in connection with the transaction.

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The Wonderful Land Of OZ: An Overview Of Opportunity Zones

Weintraub Tobin Chediak Coleman Grodin Law Corporation
Aman Badyal

October 4, 2019

Opportunity Zones (or OZs) may be the most talked-about provision of the Tax Cuts and Jobs Act of 2017. There are many twists and turns on the yellow brick road to completing an OZ project. This article sets forth the underlying rationale of the OZ program, its principal tax benefits, an overview of the basic requirements for making an eligible investment, and certain common problems encountered by taxpayers seeking to take advantage of OZs. In particular, we emphasize the continued availability of the program even if you aren’t prepared to set off for the Emerald City right away.

Purpose of the Program

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