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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Pennsylvania Prospective Purchasers of Contaminated Property and Their Administrative Records

Greenberg Traurig LLP
David G. Mandelbaum

May 1, 2019

On April 26, 2019, the Pennsylvania Environmental Hearing Board (EHB) voided two amendments to a prospective purchaser agreement (PPA) for the Bishop Tube Site entered into in 2007 and 2010. Del. Riverkeeper Network v. Dep’t of Envt’l Prot’n, EHB Dkt. No. 2018-020-L (Constitution Drive Partners). The underlying PPA was dated 2005. The Department of Environmental Protection (DEP) failed to issue public notices of the amendments until 2017, and did not respond to comments received until 2018, by which point conditions had changed. DEP failed to make an administrative record that took adequate account of the delay and the changed circumstances.

Prospective purchaser agreements are tools used under the federal Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund), 42 U.S.C. §§ 9601-75, and the Pennsylvania Hazardous Sites Cleanup Act (HSCA), 35 Pa. Code §§ 6020.101 to .1305, to enable parties looking to acquire a contaminated site to do so with known cleanup obligations. The EPA website addresses PPAs and other tools generally here.

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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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Keystone XL Pipeline Litigation Takes A Turn On Heels Of President Trump’s New Presidential Permit

Squire Patton Boggs LLP
E. Nicki Hewell

May 10, 2019

The Keystone XL Pipeline is back in the spotlight. In the first quarter of 2019, the U.S. District Court for the District of Montana and the U.S. Court of Appeals for the Ninth Circuit upheld the injunction prohibiting TransCanada Keystone Pipeline, LP and TransCanada Corporation (TransCanada) from beginning construction on the Keystone XL Pipeline. On March 29th, President Donald Trump issued a new cross-border permit that threatens to bypass the pending litigation. Most recently, on April 8th, the United States and TransCanada filed motions to dismiss the Ninth Circuit appeal and remand to the district court with instructions to dismiss for mootness.

These filings represent the most recent steps in a decade-long fight over this controversial pipeline.

The Keystone XL Pipeline

The Keystone XL Pipeline is the planned fourth phase of the Keystone Pipeline System, an oil pipeline system in Canada and the United States, which was commissioned in 2010. Phases 1-3 have already been completed and are online. The first phase went online in 2010, and the most recent phase (the Houston Lateral Pipeline) went online in 2017.

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Considerations for Environmental Due Diligence

Breazeale Sachse & Wilson LLP
John B. King

April 15, 2019

Due diligence conducted when acquiring assets in a commercial transaction, whether the assets include property with existing operating facilities or undeveloped property on which a facility is to be constructed, is absolutely essential to ensuring the property does not contain unknown environmental liabilities and is suitable for the buyer’s intended use. Of course, the level of due diligence and the time and money spent on it will vary depending on the size and nature of the acquisition. But it should never be less than enough to obtain sufficient information about potential liabilities and future uses so a buyer may make an informed decision.

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Just In Case You Wondered Whether PFAS Are Really A Big Deal

Foley Hoag LLP
Seth D. Jaffe

April 8, 2019

If you were thinking that PFAS were important, but you’ve been unsure just how big a deal they are, you need look no further than the Statewide PFAS Directive issued by the New Jersey Department of Environmental Protection. Some of my colleagues in New Jersey may correct me, but I think that the Directive may be the most wide-ranging order I’ve ever seen issued by an environmental agency. (And I know that NJDEP denies that the Directive is in fact an “order.” Can you say “walks like a duck”?)

The Directive represents NJDEP’s attempt to frame a comprehensive approach towards the contamination resulting from the use of PFAS in New Jersey. That’s all well and good. Nonetheless, it’s not obvious that significant concerns about PFAS are enough to justify this Directive. Here are some of the provisions that might give one pause.

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Dust In The Wind: Seventh Circuit Opens Door for Citizen Suits Under RCRA

Barnes & Thornburg LLP
Louise Dyble

April 11, 2019

The Seventh Circuit recently slapped down a decision dismissing a citizen suit for environmental contamination, throwing court doors wide open to private plaintiffs seeking injunctive relief under the Resource Conservation and Recovery Act (RCRA).

With its March 6, 2019, decision in Liebhart v. SPX Corporation, the Seventh Circuit joined eight other circuits in adopting a lenient interpretation of RCRA’s requirement that plaintiffs show “imminent and substantial endangerment to health” from contamination. The decision empowers federal courts in Illinois, Indiana and Wisconsin to issue orders “to eliminate the risks posed by toxic waste.”

The controversy started with the demolition of a former manufacturing facility located on the same block as three residential properties owned by William and Nancy Liebhart in Watertown, Wisconsin. Prior to 1971, the factory produced power transformers containing Polychlorinated Biphenyls (PCBs), a substance subsequently banned by the EPA. After the factory shut down completely in 2005, SPX commissioned a site study that revealed traces of PCBs throughout the building, most significantly in its concrete floors. Demolition commenced in 2015 under an EPA-approved “self-implementing cleanup plan.”

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President Trump Jumpstarts LNG Development and Transportation

Holland & Knight LLP
Dianne R. Phillips

April 12, 2019

On April 11, 2019, President Trump signed an Executive Order on Promoting Energy Infrastructure on Economic Growth which included provisions related to updating regulations linked to facilities which handle liquefied natural gas (LNG) and regulations associated to transporting LNG by rail. As described in prior blog posts, regulatory changes are needed before LNG can be transported by rail tanker cars under applicable Hazardous Materials and Carriage by Rail regulations, 49 C.F.R Parts 172, 173 and 174, absent a special permit. Although the Association of American Railroads (AAR) filed a petition for rulemaking with the U.S. Department of Transportation, Pipeline and Hazardous Materials Safety Administration (PHMSA) in January 2017 and PHMSA responded on May 7, 2018, there hasn’t been much movement on the subject. With this Executive Order, President Trump has ordered the Secretary of Transportation to “propose for notice and comment a rule, no later than 100 days after the date of this order, that would treat LNG the same as other cryogenic liquids and permit LNG to be transported in approved rail tank cars” and further “finalize such rulemaking no later than 13 months after the date of this order.” No surprise that sides are already forming about what some are calling “bomb trains” so we can expect a lot of interest in this particular rulemaking.

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Where Do They All Go?

Davis Wright Tremaine LLP
Gerald F. George

March 13, 2019

One of life’s eternal questions: where do all those golf balls go that are hit into a water hazard? If it was a pond, I knew the answer from my misspent youth – kids sneaking onto the premises at night fished them out of the ponds and sold them to other golfers. But what about Pebble Beach? Those balls went into the ocean!

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