Impact of PFAS on Private Equity: Preparing for the Coming Wave of Regulation and Litigation

Akerman LLP
Ellen S. Robbins and Matthew J. Schroeder

July 11, 2019

Regulation of Per and Poly-Fluoroalkyl Substances (PFAS) is increasing at the state and federal level as costly PFAS-related litigation is on the rise throughout the United States. Found in everyday products such as food packaging, stain, water and grease-resistant materials, and nonstick cookware, as well as being present on virtually all military bases and airports, the prevalence of PFAS combined with the heightened awareness of the public and the plaintiffs’ bar, make private equity funds and their portfolio companies prime targets for litigation and regulation.

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Uncertainty Abounds Despite Clean Water Act Update

Dinsmore & Shohl LLP
Daniel R. Flynn

July 8, 2018

Last month marked the 50-year anniversary of one of the more infamous and impactful environmental disasters to occur in the United States. On June 22, 1969, the Cuyahoga River, which runs through the heart of Cleveland before emptying into Lake Erie, caught fire for the 13th time. Time magazine ran a story that highlighted the river’s severe pollution.[1] The national reaction to the story is widely credited as the impetus for the Federal Water Pollution Control Act Amendments of 1972, now known as the Clean Water Act (CWA).[2] The objective of the CWA is “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.”[3] This seemingly straightforward and worthy objective has, however, led to more than 40 years of uncertainty and litigation over what constitutes “the nation’s waters” or “waters of the United States.”

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PCB Update To New Jersey Site Remediation Guidance

Manko Gold Katcher & Fox
Bruce S. Katcher

June 27, 2019

While many site remediation projects are effectively handled by complying with the New Jersey Department of Environmental Protection (NJDEP) Technical Requirements for Site Remediation, the dual jurisdiction of the US Environmental Protection Agency (EPA) and NJDEP frequently comes into play when it comes to the remediation of polychlorinated biphenyl (PCB) contaminated media. Consequently, the recent update of NJDEP’s guidance document “Coordination of NJDEP and USEPA PCB Remediation Policies” should be reviewed for any New Jersey remediation involving PCBs.

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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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Ohio H.B. 168 Creates Superfund-like Protections for Qualifying Purchasers of Brownfield Properties

Vorys Sater Seymour and Pease LLP
Ryan D. Elliott

June 1, 2019

The Ohio House of Representatives recently passed a bill (H.B. 168) that provides “bona fide prospective purchasers” (BFPPs) of brownfield properties with an affirmative defense against state lawsuits seeking to impose liability for the cleanup of such properties. To qualify for the liability protection as a BFPP under H.B. 168, a landowner must satisfy the criteria for a similar defense provided under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Specifically, a BFPP must perform “all appropriate inquiries” (see 40 CFR § 312.20) prior to acquiring the property, and demonstrate “no affiliation” with a liable party. CERCLA also requires the BFPP to satisfy certain obligations after acquiring the property including:

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WOTUS Woes – Federal Judge Remands Obama-Era CWA Rule

Goldberg Segalla LLP
Brandon D. Zeller

June 6, 2019

Last week, a federal district judge in Texas remanded the Obama-era Waters of the United States rule to the EPA and U.S. Army Corps of Engineers (US ACE), citing the agencies’ failure to use proper procedure when publishing the rule.

​The 2015 rule, generally referred to as WOTUS, allowed for a drastic increase to the reach of the Clean Water Act (CWA), in part, by defining “waters of the United States” to include waters adjacent to waters that had traditionally been considered covered by the CWA. Under the WOTUS definition, the CWA’s jurisdiction extended to any area where water is found at any time so long as that water flows on the surface or below the surface to an otherwise recognized WOTUS. Application of WOTUS has been delayed by litigation in courts around the country, and the EPA under the current administration has worked to defang or dismantle the rule.

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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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SRRA 2.0: New Jersey Introduces Legislation to Amend Site Remediation Reform Act

Greenbaum, Rowe, Smith & Davis LLP
Maura E. Blau and David C. Scott

June 10, 2019

Legislation has recently been introduced in the New Jersey Senate and Assembly to amend the 2009 Site Remediation Reform Act (SRRA). The legislation reflects a collaborative effort led by Senator Bob Smith, a co-sponsor of the Senate bill, working with various stakeholders and the New Jersey Department of Environmental Protection (NJDEP).

The legislation – identical bills S-3862 and A-5293 – is colloquially referred to as “SRRA 2.0.” It is intended to implement “lessons learned” in the ten years since SRRA was enacted, launching the privatization of a large portion of the responsibilities previously handled by NJDEP by creating the Licensed Site Remediation Professional (LSRP) program.

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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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