New Jersey Continues to Lead the Regulation of PFAS

Manko Gold Katcher & Fox
John F. Gullace and Darryl D. Borrelli

September 11, 2018

While the Federal Government continues to debate whether and how to regulate per- and polyfluoroalkyl substances (“PFAS”), New Jersey continues to lead the charge to regulate these substances. On September 4, 2018, the New Jersey Department of Environmental Protection (“NJDEP”) “adopted amendments to the New Jersey Safe Drinking Water Act (SDWA) rules … to establish … a maximum contaminant level (MCL) for perfluorononanoic acid (PFNA) of 0.013 micrograms per liter (ug/l) … .” (or 13 parts per trillion).

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For a Clean Slate, Don’t Forget About EPA’s Audit Policy

Kelley Drye & Warren LLP
Joseph J. Green

September 13, 2018

After almost a decade of neglect, EPA is once again actively encouraging facilities to utilize the agency’s Audit Policy to “address noncompliance in an efficient and timely manner.” Over the last several months, EPA has taken steps to promote use of the “e-Disclosure” system and to remind regulated entities of the benefits of the Audit Policy, which allows for substantial (near 100% in many cases) penalty reductions for violations that are self-disclosed and promptly corrected.

In announcing the launch of the new campaign on May 15th, EPA declared the agency’s “renewed emphasis on encouraging regulated entities to voluntarily discover, promptly disclose, expeditiously correct, and take steps to prevent recurrence of environmental violations.” This renewed emphasis is consistent with the current EPA’s focus on improving compliance through mechanisms, including voluntary self-correction, that achieve environmental goals more quickly and in a less costly, adversarial and time-consuming manner than traditional enforcement means.

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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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Phase I Environmental Site Assessments: What You Need to Know to Close Your Deal

Spencer Fane LLP
Andrew C. Brought

August 10, 2018

This article was originally published in the fall 2015 SIOR Professional Report and written by Andrew Brought. The information remains extremely relevant to businesses making property transactions.

As someone who frequently helps businesses buy and sell commercial and industrial properties, I frequently encounter misunderstandings about Phase I Environmental Site Assessments (ESAs) and their role in a property transaction. Although not an exhaustive list, these 10 items are among the most important you should know about for your next property transaction.

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EPA contractors

The EPA Proposes Affordable Clean Energy (ACE) Rule

Synergy Environmental, Inc.
Brink Young

August 22, 2018

On August 21st, the US Environmental Protection Agency (EPA) proposed a new rule to replace the Obama Administration’s signature climate change regulation. This new plan is designed to scrap the Clean Power Plan and replace it with the Affordable Clean Energy (ACE) Rule. This new rule will establish guidelines for states to use when developing plans to limit GHG’s at their power plants. The ACE Rule is intended to empower states, boost energy independence and aid economic growth and at the same time promoting job creation.

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Cooperating with Environmental Regulators Could Cost You Your Coverage on Historical Contamination Sites

King & Spalding LLP
Craig Stanfield

August 15, 2018

Reprinted with permission from Texas Lawyer. © 2018 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.

If you manage environmental issues, receiving an unexpected letter from EPA or a state environmental regulator about historic contamination could be the start of a years-long and expensive project. Whether these costs are borne by your company alone or are covered by insurance policies is a question you should raise early with coverage counsel.

The site at issue could be one that no one has ever heard of and for which your company may have scant to no records. Your company’s involvement could have been brief and perhaps insubstantial. Some predecessor entity, which may not operate any longer, could have simply arranged for a small amount of waste to be deposited in a landfill or may have operated briefly at a site. And that activity could have been done entirely in line with standards of the day. But none of those arguments may be enough to avoid investigating and remediating the site.

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New Jersey Kicks Off a New Era of Environmental Enforcement with the Filing of Six New Lawsuits for Natural Resource Damages & Cost Recovery

Manko Gold Katcher & Fox
John F. Gullace and Nicole R. Moshang

August 6, 2018

It has been a decade since the State of New Jersey filed a lawsuit to recover natural resource damages (NRDs) for harm to environmental resources that arose from the contamination of soil or water. On August 1, 2018, the state filed three NRD lawsuits and initiated several cost recovery actions to recover funds incurred by the New Jersey Department of Environmental Protection (NJDEP) at several sites. In a press release and at two press events Commissioner McCabe and Attorney General Grewal described the six new lawsuits as the beginning of a new era of environmental enforcement in New Jersey. According to Attorney General Grewal: “Today is just the beginning. We are going to hold polluters accountable – no matter how big, no matter how powerful, no matter how long they’ve been getting away with it. And we’re sending a message to every company across the state: if you pollute our natural resources, we are going to make you pay. … Today, we’re back in the environmental enforcement business.”

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Drinking Water Providers Seek Pause in Rush to Set MCLs for Emerging Contaminants

Jenner & Block LLP
Steven M. Siros

August 3, 2018

The presence of emerging contaminants such as perfluorinated chemicals (PFOS) and 1,4-dioxane in drinking water often make the headlines as sampling technologies become more sophisticated and these contaminants are being detected with increasing frequency in drinking water systems across the country. There has been a significant push to compel regulators to set regulatory standards and/or issue health advisories for these emerging contaminants, but the impact that these standards and health advisories have on drinking water systems cannot be ignored.

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Supplemental legal analysis provides additional support for Administration’s narrower interpretation of “waters of the United States.”

Sidley Austin LLP
David F. Asmus, Samuel B. Boxerman, Terence T. Healey, Kenneth W. Irvin, Michael L. Lisak and Judah Prero

July 12, 2018

On July 12, 2018, the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (USACE) issued a supplementary notice of proposed rulemaking in support of its “Step One” proposal to rescind the 2015 Clean Water Rule. The 2015 Clean Water Rule interpreted “waters of the United States” as those with a “significant nexus” under the test articulated by Justice Kennedy in Rapanos v. United States, 547 U.S. 715 (2006). In February 2017, President Trump signed an Executive Order directing the agencies to consider rescinding the rule in favor of the “adjacency” standard articulated by Justice Scalia in Rapanos.

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Latest PFAS Developments

Holland & Knight
Dianne Phillips and Deborah E. Barnard

July 3, 2018

On June 19, 2018, the Massachusetts Department of Environmental Protection (DEP) Bureau of Waste Site Cleanup (BWSC) issued its Interim Guidance on Sampling and Analysis for PFAS at Disposal Sites Regulated under the Massachusetts Contingency Plan (MCP Guidance). This follows the June 8, 2018 guidance, Final Recommendations for Interim Toxicity and Drinking Water Guidance Values for Perfluorinated Alkyl Substances Included in the Unregulated Chemical Monitoring Rule 3 (Drinking Water Guidance), from the DEP Office of Research and Standards (ORS). These documents were the result of an effort across DEP programs, which began in February 2018, to address the lack of enforceable federal standards for per- and polyfluoroalkyl substances (PFAS) in drinking water.

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