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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Will the IRS Include Brownfields Properties in Its Opportunity Zone Regulations?

Lane Powell PC
Eric J. Kodesch and Michael A. Nesteroff

March 15, 2019

The Opportunity Zone tax incentives created by the federal Tax Cuts and Jobs Act of 2017 seemed to be a perfect opportunity to spur development of environmentally impaired properties, known as brownfields, in economically distressed communities. But the IRS draft regulations currently under consideration do not appear to allow for inclusion of brownfields in the program. That could mean, for lack of a better description, a real lost opportunity for many communities since brownfields often are in the very areas that the Opportunity Zone program is intended to benefit.

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Trump Administration Superfund Related Activities

Seyfarth Shaw LLP
Rebecca A. Davis, Jeryl L. Olson and Craig B. Simonsen

March 6, 2019

Seyfarth Synopsis: Under the Trump Administration, the U.S. Environmental Protection Agency (EPA) has fully or partially deleted 22 sites from the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) National Priorities List (NPL). This is the largest number of deletions in one year since 2005.

However, the EPA continues to add sites to the NPL, and added five new sites in the Fall of 2018. Two sites are particularly noteworthy as they were added solely due to a subsurface intrusion pathway. Subsurface intrusion is the migration of hazardous substances or pollutants and contaminants from the unsaturated groundwater zone and/or the surficial groundwater into overlying structures. Vapor intrusion is the most common form of subsurface intrusion, but the intrusion also may be in the form of gas or liquid.

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Synergy Environmental and Waterloo Hydrogeologic to provide a training seminar: Applied Groundwater Modeling with Visual MODFLOW Flex In April 2019

Synergy Environmental, Inc.
Brian Loughnane, PG

February 26, 2019

Synergy Environmental will be the partnering with Waterloo Hydrogeologic to provide an intensive 3-day on-site training for its premier modeling software, Visual MODFLOW Flex. The course will be held at Synergy’s Royersford PA office during April 9 – 11, 2019.  

For over 25 years Waterloo Hydrogeologic has specialized in assessing, developing and managing the world’s water resources using the most powerful and cost-effective software technologies available today. Waterloo Hydrogeologic’s environmental software is active in almost every country in the world.

Course Description

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A Phase I ESA Gone Awry Leads to Millions in Cleanup Liabilities — a Cautionary Tale for Property Transactions

Spencer Fane LLP
Kathleen M. (Kate) Whitby

January 29, 2919

Lenders, borrowers, purchasers, sellers, and even contractors sometimes get annoyed with environmental lawyers when we insist on reviewing Phase I Environmental Site Assessment (ESA) draft reports, looking at the underlying regulatory files, checking title reports, real property records, and contract terms, counting days to make sure that the Phase I report is not stale or expired at closing, and documenting which parties do, should, or do not have reliance rights under that report.

A pair of court cases currently making their way through the New York federal district court system illustrate why environmental lawyers fuss so much over the “i’s” and “t’s” of Phase I ESA processes.

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What to Expect in Environmental Regulation for 2019

McGuireWoods LLP
Michael H. Brady, Charles D. Case, David A. Franchina, Megan S. Haines, Amanda Kitchen Short, John M. Lain, Samuel O. Lumpkin, Dale G. Mullen, Heather Nixon Stevenson, Dana P. Palmer , W. Dixon Snukals, James A. Thornhill and Darin K. Waylett

February 4, 2019

Deregulation was one of the primary promises of President Trump’s campaign, and in 2018, the administration continued to roll back environmental regulation. The recent shutdown of the federal government has slowed deregulation, while at the same time affecting funding and implementation of programs. While it is difficult to estimate the impact of the recent shutdown, and the possibility of another, on environmental regulation, expect 2019 to continue the trend of federal deregulation, as well as judicial challenges to such deregulation. Meanwhile, certain states, like California, will continue implementing a comprehensive environmental regulatory agenda, while others may focus on clean energy, such as Maryland with its Clean Energy Jobs Act.

The following are some of the more material areas to track in 2019.

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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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Which State’s Law Applies to Your Legacy Environmental Liability Claim?

Barnes & Thornburg LLP
John Fischer

January 30, 2019

It is a situation we have seen time and again, including in several recent matters: a policyholder headquartered in State A is pursued by the regulators in State B for investigating and cleaning up contamination at the policyholder’s facility located in State B. In the same circumstances and under the same policy language, the law of State A would require the carrier to cover the cost of the investigation and remediation, but the law of State B would not.

This drastic difference in outcome is common due to the sometimes vast differences in coverage law from state to state. The threshold question of which state’s law applies often makes all the difference between coverage and no coverage for contamination at a site that is in a different state from the state where the policyholder is based.

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BUILD Act Makes Two Major Changes to CERCLA

Winston & Strawn LLP
Maura T. Levine-Patton and John Fehrenbach

January 10, 2019

In March 2018, the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) was amended by the Brownfield Utilization, Investment, and Local Development Act of 2018 (“BUILD Act”). The Environmental Protection Agency (EPA) solicited comments on the BUILD Act through July 10, 2018 and recently incorporated the Act’s changes in its FY 2019 brownfields grants guidelines. The BUILD Act makes two major changes to CERCLA: it increases funding for brownfield redevelopment grants, and formally extends the bona fide prospective purchaser (BFPP) statutory defense to tenants of contaminated sites, which previously had been a policy of EPA. Applications for grants to address sites contaminated by hazardous substances, pollutants, or contaminants under the new BUILD Act guidelines are due to EPA by January 31, 2019.

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Pennsylvania’s First PFAS Advisory Meeting Summary

Synergy Environmental, Inc.
Brian Loughnane, P.G

January 8, 2019

Much is being discussed in the news throughout Pennsylvania about Perfluorooctanoic Acid (PFOA) and Perfluorooctane Sulfonate (PFOS), which are part of a larger group of chemicals referred to as perfluoroalkyl substances (PFAS).  Concern exists about their release into the environment, their health effects and efforts needed to remediate PFAS. To help Pennsylvania residents learn more about PFAS, and to receive input from representatives of government, industry and advocacy groups, the Wolf Administration held its first public meeting of its multi-agency PFAS Action Team Friday, during November 30, 2018.

PADEP PFAS Action Team – 2018

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