Synergy’s Bethlehem Office has moved to Allentown. Our new address is:
645 West Hamilton Street
Allentown, PA 18101
Contact Hazem Hijazi at 610-570-3679
Email: experts@synergyenvinc.com
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:
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.
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:
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.
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.
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.
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.
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.
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.