New Jersey PFAS Directive

Posted on March 28, 2019 by John A. McKinney Jr

Co-authored by Robert H. Crespi – First published on the CSG Environmental Law Blog.

On March 25, 2019, the New Jersey Department of Environmental Protection (“DEP”) issued a Statewide PFAS Directive to a number of companies associated with the manufacture of poly- and perfluoroalkyl chemicals (“PFAS” which includes PFNA, PFOA and PFOS and other substances) and their replacement compounds.  Pursuant to the Directive, these companies are to reimburse DEP’s past and future costs of investigating, monitoring, testing, treating, and remediating New Jersey’s drinking water and waste systems, private drinking water wells and natural resources including groundwater, surface water, soil, sediments and biota.  The Directive requires certain information from these companies as to future costs and information related to the historic uses of PFAS and replacement chemicals including “information ranging from use and discharge of the chemicals through wastewater treatment plants, air emissions, and sales of products containing the chemicals to current development, manufacture, use and release of newer chemicals in the state.”  The Directive notes that failure to comply will increase Respondents’ potential liability to the DEP in an amount equal to three times the cost of arranging for the cleanup and removal of the discharges, which the Directive deems a “statewide public nuisance.”

This Directive states New Jersey’s resolve that these companies, and not New Jersey residents, pay the costs necessary to protect “public health and safety and the state’s environment.”  The DEP contends that this Directive will require these companies to “fund millions of dollars in assessment and cleanup efforts” pursuant to the state’s Spill Compensation and Control Act, the Water Pollution Control Act and other state environmental laws.

New Jersey has been in the forefront of states acting to address PFAS.  At the time of the Directive’s issuance, DEP Commissioner Catherine R. McCabe referenced the “near daily” finding of PFAs in New Jersey’s environment. As noted in the press release announcing the Directive’s issuance, New Jersey was “the first state to adopt a maximum contaminant level (MCL) of 13 parts per trillion for PFNA in drinking water, the strictest such standard in the nation. New Jersey's standards supersede those of the U.S. Environmental Protection Agency, which does not regulate the chemicals that have been linked to cancer and other illnesses … Earlier this month, the DEP established interim specific groundwater quality standards for both PFOA and PFOS, at 10 parts per trillion. New Jersey is among the first states to pursue regulation of these compounds.”

Of course, the Directive is only the opening salvo.  More is sure to come.

Loving that PFAS: Does EPA’s Valentine’s Day PFAS Action Plan Portend a Change of Heart?

Posted on March 6, 2019 by Tom Burack

In a February 13 blog, I focused on the substantial role that states are playing in addressing PFAS compounds, in no small measure because EPA has not to date fully asserted itself in the arena, making the acronym as much one about a “Problem for All States” as about Poly- and Perfluoroalkyl Substances.  The following day, with only limited advance notice, EPA released its “PFAS Action Plan,” a Valentine’s Day gift to all of those who have been waiting to see if EPA has much interest in spending more time, let alone falling in love, with these ubiquitous contaminants.

EPA’s plan, while comprehensive in scope, has met with mixed reviews, in no small measure because it remains unclear where this is all leading or how fast anything will happen, and whether EPA will ultimately embrace a substantial and decisive leadership role in addressing PFAS contamination across the country, or whether, in this age of cooperative federalism, it will stick more to developing the background science and largely leave the standard-setting, regulatory and enforcement actions to the States. The Plan itself includes a number of major components that focus variously on reducing future PFAS exposures, understanding PFAS toxicity as a basis for developing groundwater cleanup and drinking water standards, identifying and mitigating exposures, providing a regulatory and liability framework for cleanups (including possible Maximum Contaminant Level (“MCLs”), as well as TRI and CERCLA hazardous substance listings for PFOA and PFOS), furthering research on PFAS health effects, and improving risk communication and engagement capabilities.  Most of the planned actions are described as the next steps in various processes, not as end results or guaranteed outcomes.

For example, the Plan states that EPA will take the next step in deciding whether to issue MCL regulations for PFOA and PFOS by proposing a “regulatory determination,” which EPA says “provides the opportunity for the public to contribute to the information the EPA will consider relating to the regulation of PFAS in drinking water.”  EPA will publish a preliminary regulatory determination in the Federal Register, obtain public comment, and then decide whether or not to issue a National Public Drinking Water Regulation for either PFOA or PFOS.  In so doing, EPA will need to weigh three criteria: Whether PFOA or PFOS have an adverse effect on the health of persons; whether PFOA or PFOS occur or have a chance to occur in public water systems often enough and at levels of public health concern; and, whether, in the EPA Administrator’s sole judgment, regulation of PFOA or PFOS presents a meaningful opportunity for health risk reductions for persons served by public water systems.  (See  While the answer to the first criterion is likely “yes,” to date the available data on occurrence have not been so compelling as to drive rapid EPA action and, accordingly, the Administrator’s ultimate judgment under the third criterion is far from predictable, and likely at least a year away.  The trade press reports a range of statements having been made by EPA leadership in recent weeks that may intimate where the agency’s heart will ultimately be on the subject, but until the next phase of the process has run its course, uncertainty will remain and states will, accordingly, continue to individually proceed to take their own responsive regulatory actions. 

And maybe this is just the way that things will or even should play out, because while EPA’s on-line cover page for its PFAS Action Plan asserts that the Agency is “taking a proactive, cross-agency approach to addressing PFAS,” it also acknowledges that the “key actions” will “help provide the necessary tools to assist states, tribes, and communities in addressing PFAS …”  Yes, EPA loves PFAS, but maybe its heart isn’t so committed that it would not also expect the states, tribes and communities to profess at least an equivalent fondness, if not an even greater passion, for regulating these chemicals and seeing to their cleanup.  Put differently, invoking the spirit of cooperative federalism, EPA’s message seems to be that the states and EPA have complementary ways of showing their love for emerging contaminants like PFAS, so there should be plenty of love to go around.

Acronymic Acrobatics: Why Poly- and Perfluoroalkyl Substances (PFAS) are becoming a Problem For All States

Posted on February 13, 2019 by Tom Burack

In an age in which the names of chemicals are so complicated that even scientists refer to them by acronyms, an entire class of manmade chemicals created to improve human lives is now in the midst of performing an acrobatic stunt, back-flipping from being the darling of industrial and consumer products to being the contaminants that are now the nemesis of many communities: Poly- and Perfluoroalkyl Substances -- commonly referred to as “PFAS” – are also coming to be recognized as something else with the same acronym, namely a “Problem For All States”.  Due to their unique chemical properties and the growing public demands for timely regulatory response actions at the local level in the absence of definitive federal leadership, PFAS compounds can be expected to remain a Problem For All States for many decades to come.

Chemical engineers, starting in the 1940s, made some remarkable discoveries: the combination of carbon and fluorine atoms into long-chained synthetic organic molecules results in compounds that variously can repel oil, water, grease or stains, resist high temperatures, and reduce friction.  These properties, combined with high durability, made these newfound PFAS compounds ideal for innumerable industrial and consumer purposes. For example, some of the most commonly used PFAS are: perfluorooctanoic acid (PFOA), as a repellent coating for textiles, paper products and cookware; and, perfluorooctanesulfonic acid (PFOS), in fire-fighting foams, carpet treatments, and mist suppressants in metal plating operations.  As a broad class, there are approximately 3,000 different PFAS compounds, some of which are precursors to other PFAS compounds, and various of which may co-occur with each other. Commonly known household products containing or made with PFAS compounds have included DuPont’s Teflon®, 3M’s ScotchGard®, and Gore’s Gore-Tex®, to name but a few. Unfortunately, some of the most commonly used PFAS compounds are also highly persistent, mobile, and non-biodegradable.  Consequently, worldwide production and uses of PFAS have resulted in their nearly ubiquitous presence throughout the environment, including in soils, sediments, surface and groundwater.

Moreover, because they can also bioaccumulate, PFAS compounds can be found in animals and humans in parts per billion (ppb) concentrations. Laboratory studies of PFAS health impacts on animals point toward elevated cholesterol levels, low infant birth weights, immune system effects, cancer (PFOA), and thyroid hormone disruption (PFOS).  While peer-reviewed human epidemiological studies of PFAS exposure have been less numerous or definitive to date, when combined with the laboratory animal studies there have been sufficient data to support the establishment of Lifetime Health Advisories for PFOA and PFOS by the US EPA in 2016 and the promulgation of regulatory limits to protect drinking water supplies by a growing number of states.

In the United States, the first health and environmental concerns arose in connection with PFAS manufacturing facilities and their waste disposal practices in West Virginia and Ohio in the late 1990’s and in Minnesota in the early 2000’s.  Between 2000 and 2002, 3M voluntarily agreed to phase out the further manufacture of most long-chain PFAS compounds, and DuPont and other US manufacturers followed suit. Today, under a set of Significant New Use Rules (SNURs) promulgated by the US EPA under the Toxic Substances Control Act (TSCA), most long-chain PFAS are allowed to be used or imported only for limited purposes and in select industries or applications.  Further restrictions have been proposed and shorter chain PFAS compounds are increasingly being used as substitutes, but even these may present significant environmental and public health concerns, as illustrated by the ongoing GenX contamination situation in the Cape Fear Watershed of North Carolina. (See, e.g.,

Ever-more sensitive laboratory technology can now detect PFAS at parts per trillion (ppt) concentrations, and it’s become evident that the more than five decades of unregulated use of PFAS has left an indelible signature in landfills, wastewater, waterways, and communities far and wide. To date, the New Hampshire Department of Environmental Services has amassed perhaps the largest single dataset on PFAS contamination in groundwater, surface water and soils of any state: roughly 6,000 samples from some 3,500 locations.  This continuously growing dataset already shows some noteworthy trends: sampling of 429 public water supply wells found that 7 (1.6%) contained PFOA or PFOS above 70 ppt (the US EPA LHA value which NH adopted as its groundwater cleanup standard); but NH has now proposed to lower its standard for PFOA to 38 ppt, which once all of NH’s public water systems have been sampled is likely to put another 16 or so in noncompliance.  More than 50% of the existing known contaminated industrial sites sampled so far in NH contain elevated levels of PFAS.  Every NH landfill leachate system sampled to date has a PFAS signature, and the monitoring wells around the older closed but unlined landfills indicate 46% exceed the groundwater standards.  Fire stations and training sites are also potential sources, as are municipal wastewater treatment plants, biosolids storage and application sites, car washes, airports (military and civilian), and a wide variety of other operations. Typical contamination vectors include not only historical releases directly to soils, groundwater or surface waters, but also atmospheric deposition resulting from airborne emissions of PFAS that subsequently contaminate other media, including groundwater.

Due to the combination of their durability, persistence, mobility, multiple possible release mechanisms, and extremely low detection limits, the simple reality is that if you look for PFAS in the environment you will find them.  The corollary is that if you haven’t found them, you’re probably not looking in the right places. While some public officials may believe that PFAS are not a problem in their states or regions, the public and elected officials – sensitized by the story of lead contamination in the water supply of Flint, Michigan – are asking questions, demanding answers, and expecting action. In 2018, the US EPA held a “national summit” on PFAS contamination and announced that it would consider whether to establish public drinking water standards, Maximum Contaminant Levels (MCLs), for some PFAS, and whether to list certain PFAS compounds as hazardous substances under CERCLA.  More recently, EPA officials have indicated that MCLs for PFAS are unlikely, but that EPA is considering broader use of its emergency administrative order authority under Section 1431(a) of the Safe Drinking Water Act to address PFAS contamination situations on a site-by-site basis. In the meantime, members of Congress have introduced bipartisan legislation to require US EPA to list all PFAS compounds as CERCLA hazardous substances and a growing number are joining a bipartisan Congressional PFAS Task Force.

The most consequential regulatory action, however, has been at the state level, which is where considerably more future action should be expected.  As of January 2019, at least eight states had adopted or proposed guidance values or regulations setting acceptable concentrations of various PFAS compounds in groundwater, drinking water, surface water, or soil, including Alaska, Colorado, Michigan, Minnesota, New Hampshire, New Jersey, New York and Vermont.  This list is expanding rapidly, as is the list of state legislatures that have regulated or are considering regulating the use of PFAS compounds, including California, Michigan, Minnesota, North Carolina, New Hampshire, New York, Pennsylvania, Rhode Island, Vermont and Washington.  The Environmental Council of States (ECOS), the national, nonpartisan, nonprofit association of state and territorial environmental agency leaders, has established a PFAS workgroup, and its research arm, the Environmental Research Institute of the States (ERIS) has a large and active technical team that has published a number of fact sheets on PFAS through the Interstate Technology Regulatory Council (ITRC). 

Regulatory strategies and cleanup standards for the same compounds often differ from state to state: for example, in Vermont the groundwater standard is 20 ppt for PFOA and PFOS individually or in combination, while in New Hampshire the standard for PFOA and PFOS individually or in combination is 70 ppt, and a proposed rule would lower the individual standard for PFOA to 38 ppt.  The process of setting health-based regulatory standards varies greatly by jurisdiction, and different standards are typically attributable to differences in which toxicity data are selected and how they are interpreted, differences in toxicity factors (i.e., multipliers or margins of safety), how animal test results are extrapolated to humans, exposure assumptions, life stage used, and sources of exposure (drinking water versus non-drinking water).  Should EPA choose not to adopt MCLs for PFAS compounds, it’s likely that more and more states will find themselves weighing these and other variables as they set their own regulatory standards and seek to explain why they may be either higher or lower than those of their neighboring states.

Because they are ubiquitous, PFAS compounds present a set of challenges that every state will ultimately need to quantify and regulate, all the while communicating with the public, the regulated community and elected officials about the steps they’re taking and why their approach is an appropriately protective risk management strategy.  The lack of a comprehensive national regulatory approach and federal standards for PFAS compounds makes the problem all the more challenging for states, as they will forever need to justify their own approach in comparison with those of other states.  All of which suggests that PFAS are, and for the foreseeable future will remain, a Problem For All States.


Posted on September 19, 2017 by Kenneth Gray

No longer emerging, Per- and Polyfluoroalkyl Substances (PFASs) have exploded on the environmental and toxic tort landscape in 2016 and in 2017.  Cognoscenti will recall U.S. EPA phase-out initiatives dating back to 2000, EPA Drinking Water Health Advisories set in 2009 and the TSCA action plan of the same year, the 2012 EPA drinking water monitoring rule, and even a blog in this very space “way back” in 2011.

Why have PFASs recently been compared to asbestos and PCBs for potential costs and impacts?  And why will they continue to be significant even if there is no further federal regulation in the near term?  Here’s why:

·        The compounds have many uses in many products and were therefore manufactured or used (and released) at a large number of facilities. Commercial products included, among others, cookware, food packaging, personal care products, and stain resistant chemicals for apparel and carpets.  Industrial and commercial uses included photo imaging, metal plating, semiconductor coatings, firefighting aqueous film-forming foam, car wash solutions, and rubber and plastics.  Sources include landfills.

·        PFASs are highly mobile and highly persistent in the environment, and so will be present for many decades.

·        The EPA Drinking Water Health Advisory level was reset (lower) in 2016 at 70 parts per trillion (ppt).

·        EPA estimates that 6.5 million people are affected by PFASs in public water systems, which does not include any impacts to smaller water systems or private wells.

·        More and more public water systems are voluntarily testing for PFASs – and more states are compelling testing.

·        Airborne releases of PFASs have contaminated groundwater and surface water.

·        They’re ubiquitous in the environment and present in human blood.  PFASs are also found in fish, and thus fish advisories are being set by states. 

·        California has proposed listing PFASs under Proposition 65 based on reproductive toxicity.

·        Many U.S. Department of Defense properties (and former properties) were the sites of PFAS releases in firefighting foam, and DOD is ramping up additional testing on its facilities.  

·        Toxic tort lawsuits have been filed over PFAS contamination in Parkersburg, WV; Decatur, AL; Merrimack, NH; and Hoosick Falls, NY. More lawsuits are likely.

·        Several Attorneys General are reportedly considering lawsuits on behalf of the citizens of their states.

It may only be the end of summer, but can you sense a snowball?

Superfund Financial Assurance Made Easy (Not!)

Posted on December 7, 2012 by David Rosenblatt

Since the early days of the Superfund program, EPA has required settling parties to provide financial assurance of the PRPs’ (potentially responsible parties) ability to perform the cleanup work.  EPA regulations afford   PRPs a choice of financial assurance mechanisms to fulfill this requirement including:  a self-funded trust, bonds, letters of credit, insurance or the satisfaction of the “financial test” provided in 40 CFR §264.143(f). 

As originally promulgated, the financial test applied to owners and operators of hazardous waste facilities permitted under RCRA.  EPA has adopted this test for Superfund financial assurance requirements and state agencies have likewise borrowed it for their own programs.  For many years, the “financial test” was the least cumbersome method for PRPs to satisfy their long-term financial assurance obligations.  It was also attractive to PRPs because as long as at least one large company met the test, the other PRPs could save the cost of employing alternative financial assurance mechanisms such as prefunding their entire obligation or purchasing letters of credit.  Further, while the financial test in 40 CFR §264.143(f) does include very specific and complex financial criteria, in practice  EPA often found submission of financial statements or other public financial reports by large companies to be sufficient. 

In recent years, perhaps in recognition of the new economic order where major airlines, automobile manufacturers and even manufacturers of famous brands such as Twinkies have filed for bankruptcy, EPA has made strict compliance with the financial means test a settlement priority.  All of the forms for financial assurance are now prescribed via EPA’s website.  Perhaps the most challenging form for a financial means proponent is the sworn letter from the company’s CFO or accountant certifying that the company satisfies the different elements of the financial test.  The letter must be updated and resubmitted every year.  The form letter may be found here.

In an era where CFOs and accountants are already burdened with a host of new Sarbanes-Oxley requirements and other regulatory controls, companies are less than enthusiastic about preparing another set of certifications to EPA concerning their company’s financial status.  A further challenge presented by the letter is that it must be submitted on behalf of the specific entity participating in the settlement or its parent.  Often, a parent corporation cannot or does not want to guaranty a subsidiary’s obligations, and its subsidiary’s financials may not be maintained in a format which makes compliance with the EPA letter practical or feasible.

EPA’s renewed emphasis on financial assurance requirements is understandable in today’s economic climate and even has some benefit for performing parties interested in ensuring that other settling PRPs likewise perform.  Indeed, PRP Groups, with the self-interest of protecting themselves from each others’ business failures, often require their group members to provide letters of credit for the benefit of the Group or prefund their Superfund settlement shares into a Group- controlled trust, even if other financial assurance mechanisms have been selected to satisfy EPA.

Whether PRPs like it or not, what is clear is that the era of less than strict compliance with EPA’s financial assurance requirements for Superfund settlements is over. 

There’s More to Solutia Than Meets the Eye

Posted on June 25, 2012 by John Barkett

CERCLA practitioners are familiar with the Eleventh Circuit’s decision in Solutia, Inc. v. McWane, Inc., 2012 WL 695007 (11th Cir. Mar. 6, 2012).  The court of appeals decided that Solutia  & Pharmacia, the plaintiff, was limited to a contribution action for costs incurred in cleaning up lead contamination.  In so holding, the Eleventh Circuit agreed with three other circuits which have held that a person who enters an administrative or judicially approved settlement under Sections 106 or 107 of CERCLA are limited to a contribution claim under Section 113(f).  See Morrison Enter., LLC v. Dravo Corp., 638 F.3d 594, 603 (8th Cir.2011); Agere Sys., Inc. v. Advanced Envtl. Tech. Corp., 602 F.3d 204, 229 (3d Cir.2010), and Niagara Mohawk Power Corp. v. Chevron U.S.A., Inc., 596 F.3d 112, 128 (2d Cir.2010).

While Solutia’s holding is significant, the decision provides an important reminder of the importance of foresight in the outcome of a claim.  Let me explain.

Solutia & Pharmacia had entered into a Partial Consent Decree (PCD) in August 2003.  The PCD referenced two areas of contamination, a PCB site and the “Anniston Lead Site.”  Solutia and Pharmacia reserved their rights in the PCD to seek contribution from parties who could be proven to be liable for the Anniston Lead Site.

In 2005 EPA undermined Solutia & Pharmacia’s reserved contribution rights.  It entered into settlements with a number of parties that provided contribution protection for lead-related cleanup costs.  By motion, Solutia & Pharmacia protested EPA’s action.  The trial court agreed and offered to suspend their obligations under the PCD because of EPA’s breach.  By either inaction or conscious decision, Solution & Pharmacia declined the offer.

In 2006, EPA and Solutia & Pharmacia entered into a “Stipulation Clarifying the Partial Consent Decree.”  Under the Stipulation, Solutia & Pharmacia agreed to clean up certain “zones” around Anniston, labeled as A, B, C, and D, which were contaminated with lead and not just PCBs.   The Stipulation provided that “it shall not be considered an admission of liability and is not admissible in evidence against the Defendants in any judicial or administrative proceeding other than a proceeding by the United States.”

Solutia & Pharmacia argued that because lead contamination was excluded from the PCD, it had a Section 107 claim for its lead-related cleanup costs.  Had the case turned just on the PCD, Solutia & Pharmacia would have been in the same position as Texas Instruments in Agere Sys., Inc. v. Advanced Envtl. Tech. Corp.—even though it signed one consent decree for which it was limited to a contribution action, costs it incurred unrelated to that consent decree could be pursued under Section 107(a).  

The court of appeals, however, agreed with the district court that the Stipulation obligated Solutia & Pharmacia to clean up areas where PCBs were commingled with hazardous substances disposed of the defendants.  Hence the PCD, which was “clarified” by the Stipulation, embraced costs associated with more than remediation of PCBs limiting Solution & Pharmacia to a contribution claim for those costs.

But what of the prohibition on admissibility of the Stipulation into evidence in any judicial proceeding that did not involve the United States?  The prohibition is not self-executing; the Stipulation was admitted in the district court and relied on heavily.  Solutia & Pharmacia apparently decided to wait until its reply brief to argue nonadmissibility.  That was too late.  Because admissibility of the Stipulation was not contested in Solutia & Pharmacia’s opening brief, the argument was waived, the court of appeals held.

The defendants in the action had been awarded summary judgment in the trial court because they had contribution protection from lead-related cleanup costs.  However, Solutia & Pharmacia had spent $14 million in cleanup costs in areas that were not covered by the PCD.  It filed a motion to alter or amend the judgment because the defendants had not sought a summary judgment with respect to these costs.  The argument was rejected in the trial court because it had not been raised before entry of the summary judgment. 

The court of appeals affirmed this exercise of the trial court’s discretion because the defendants’ motion for summary judgment, in fact, had sought dismissal of all of Solutia & Pharmacia’s Section 107 claims, and Solutia & Pharmacia had never argued prior to the grant of summary judgment that they “voluntarily incurred costs unrelated to the Consent Decree.”

The burden is always on counsel to make and preserve arguments.  This is as much a lesson from Solutia as its holding on the Section 107/113 issues.

NJDEP Site Ranking Letter and Draft Data Forms Will Require Prompt and Careful Attention

Posted on June 7, 2012 by William L. Warren

Significant consequences may result from the upcoming remedial priority ranking of approximately 12,000 contaminated sites by the New Jersey Department of Environmental Protection (NJDEP).  In mid-May NJDEP initiated its formal communications with parties responsible for contaminated sites by sending data forms that identified the information that NJDEP will use to compute the remedial priority rankings of most contaminated sites.  After about a 90 day review and comment period, NJDEP will rank all of the sites on a scale from 1 to 5, with “1” being the “lowest risk potential” and “5” being the “highest risk potential.”  Within about sixty days of receipt of the data form, each recipient will have to register with the NJDEP to preserve its right to submit comments.  Only the Licensed Site Remediation Professional (LSRP) for the site, required to be retained by responsible parties by May 7, 2012, may submit the actual comments on the data form.  NJDEP intends to publish site rankings in the Fall and to update the rankings quarterly commencing in 2014, as more data becomes available for each site during the course of remediation.

NJDEP originally planned to publish draft site rankings and submit the rankings for comment.  However, it decided to issue these draft forms instead, explaining that it wanted to focus its efforts on giving parties the opportunity to make sure that it had up-to-date site remediation information before it calculated the site ranking.
NJDEP’s ranking will be based on:

• risk to the public and the environment;
• length of time the site has been undergoing remediation;
• economic impact; and
• other factors deemed relevant.

I.  Why Is NJDEP Ranking Sites, and How Will Sites Be Affected by the Ranking?

Besides a long overdue statutory obligation to rank contaminated sites, NJDEP wants to insure that the sites with the highest potential risk are being remediated.  Although nothing is certain, NJDEP likely will not take any action, even if a site is highly ranked, so long as:

• the site is undergoing active remediation;
• no enforcement actions have been commenced; and
• an LSRP has been retained.

However, if the remediation is not proceeding in compliance with these criteria, a high ranking may cause NJDEP to place the site under its “Direct Oversight,” and “Direct Oversight” is not a place that most responsible parties want to be. (See Section III. below)  It is also true that a highly ranked site, even if not placed under NJDEP “Direct Oversight,” is more likely to receive public scrutiny and potential adverse publicity than is a lower ranked site.  NJDEP, the United States Environmental Protection Agency (USEPA) and legislators constantly receive requests from environmental groups and others to take remedial action or investigate the progress of a remediation.  Undoubtedly, a site with a high ranking is a target for future attention, especially because NJDEP will be posting the rankings on its website.


NJDEP Site Ranking Letter & Draft Data Forms Require Attention.pdf (30.02 kb)

Germany's Bold Move: Ousting Nuclear Energy by 2022

Posted on June 16, 2011 by Stephen M. Bruckner

In the wake of Fukushima's nuclear emergency, Germany has decided to end its use of nuclear energy. Germany announced on May 30 that it plans to shut down all of the country’s nuclear power plants by 2022. This decision to close the source of over 25% of its electric power has major economic implications. Why did the Fukushima incident cause Germany to reverse the decision that it made only last September to extend plant licenses an additional 8 to 14 years?  In light of its history of few natural disasters and a sound nuclear plant safety record, Germany’s response to the Fukushima incident is surprising and confounding.  Whatever the motivation of the German government, the salient question is whether this planned phase-out is even feasible.


Germany certainly is turning its back on the prayer of that famed nuclear plant worker, Homer Simpson: "And Lord, we are especially thankful for nuclear power, the cleanest, safest energy source there is. Except for solar, which is just a pipe dream." Currently, nuclear energy provides the United States with over 20% of its power and provides France with over 75% of its energy needs. Nuclear energy has been both praised as a successful alternative to fossil-fuel energy and condemned for its riskiness and generation of radioactive waste. Many policy makers and some environmental organizations tout the benefit of nuclear energy in reducing our carbon dioxide emissions.


Germany, however, has already taken the first steps to oust nuclear from its energy mix by shutting down seven of the older plants. It plans to boost the use of renewable energy, accelerate the expansion of the “smart” electricity grid, and make buildings more energy efficient. Bloomberg estimates that Germany will spend €10 billion to expand its electricity grid to avoid stunting economic growth. Boosting renewable energy won't be much easier.  German nuclear power plants currently pay a tax to help subsidize renewable energy sources like hydro and wind power. Without the nuclear power plants, the German government must find the funds elsewhere. It will likely cost the government €235 million to replace this loss of revenue in the next three months alone.


The closing of Germany’s nuclear power plants complicates its efforts to reduce its carbon dioxide emissions by 40% by 2020. Assuming that Germany does not increase its fossil-fuel energy production, one can predict the rest of this story: To avoid looming energy shortages and economic instability, Germany will need to buckle down and develop new-and-improved environment-friendly energy sources. If successful, these efforts will pave the way for a worldwide boom in renewable energy development. But it is also possible that Germany will return to pre-Fukushima nuclear energy production — that or purchase nuclear energy generated in France. In the meantime, with Germany's solar manufacturing already up 7.6%, Homer Simpson (with the rest of the world anxiously waiting) will continue to eat his sprinkled donuts from the comfort of his nuclear power plant job, waiting to see if his “pipe dream” is real.


Bold move, Germany. Now pass the donuts.

When Environmental Regulators Try to Enforce Unwritten Policies

Posted on May 3, 2011 by Jeff Thaler

Anyone with substantial experience representing clients before regulatory agencies has likely encountered the frustrating situation where a staff person holds your client to a standard not found either in statute or regulation, but rather in “unwritten policy” of the agency. For most clients, additional review of such actions by agency staff is either not worth the time and money, or are subsumed in a variety of other issues.

Recently, the Maine Supreme Judicial Court had the opportunity to review the legality of certain actions of the Maine Department of Environmental Protection that were based not in Maine law or regulation, but rather upon “unwritten agency customs and practices”. Despite the Court’s normal deference to a state agency’s interpretation of a statute, in the case of Tenants Harbor General Store, LLC v. Department of Environmental Protection,2011 ME 6, 10 A. 3d 722, the court reversed a lower court judgment for the DEP, and ruled in favor of a small business owner.

The case involved the question of whether the installation of new underground gasoline storage tanks at a convenience store must be undertaken pursuant to new regulations that impose additional restrictions on placement in relation to proximity to public and private water supplies, or whether the tanks would be “grandfathered” and thus not subject to the new regulations. When Tenants Harbor General Store, LLC, which purchased the convenience store with gasoline pumps in question in 2007, removed the old tanks in 2008 and sought to install new tanks in the same location, the DEP refused to treat the proposed installation of new tanks as “replacement of an existing facility”; staff instead insisted that this was a new installation subject to new restrictions. The LLC sought judicial review, and the DEP won the first round in Superior Court.

The DEP argued that the prior owner had signed a document notifying the Department that she was abandoning the facility, and that neither the prior owner nor the LLC provided the Department with notice in writing of the intention to replace the removed tanks. However, as noted by the Maine Supreme Court, “the Department does not, however, identify any applicable statute or rule that required a registrant to provide notice of the intent to replace an existing facility.” Moreover, “none of the Department’s forms indicated any requirement that a registrant provide written notice of the intent to replace a facility that was being removed.”

Interestingly, the Department argued in court that “the LLC could have also have learned of the Department’s practice of requiring of written notice by seeking advice from an attorney”; this proposition was rejected by the Supreme Court, which stated that “neither an applicant nor an advocate would have a basis in law to determine that notice was required. Statutes and regulations, not unwritten agency customs and practices, must inform registrants and their attorneys of what is required to register a facility.” (emphasis in original). Thus, the Supreme Court concluded that the Department’s position “was contrary to the statutory and regulatory law”and, therefore, the Court vacated the lower court’s judgment, and remanded with instructions that the Department accept the LLC’s registration of the tanks to replace the grandfathered tanks.

This decision is the first one in Maine to attack the common approach of regulators to act on unwritten agency customs and practices. The Maine Supreme Court’s decision and logic are certainly applicable to similar situations in other jurisdictions, as well as at the federal level, indeed anywhere that regulators act outside of the confines of properly written laws and regulations.

Anadarko Petroleum Corp. Finally Wins Aggregation Battle Over Permit For Natural Gas Compressor Station

Posted on April 26, 2011 by Donald Shandy

On February 2, 2011, the U.S. Environmental Protection Agency (“EPA”) issued an “Order Denying Petition for Objection to Permit” in In re Anadarko Petroleum Corp., Frederick Compressor Station, a decision that should finally pave the way for Anadarko Petroleum Corporation (“Anadarko”) to continue to operate its Frederick Compressor Station in Colorado under a minor source operating permit. The EPA’s Order is the latest in a contentious and lengthy struggle that began when the Colorado air permitting agency (“CDPHE”) renewed the Title V operating permit for the Frederick Compressor Station on January 1, 2007. Four years, three challenges by an environmental group (WildEarth Guardians), and two EPA objections later, Anadarko appears to have jumped over all the hurdles.

The main issue before the EPA was whether CDPHE should have aggregated the emissions from the Frederick Compressor Station and various oil and gas wells and other pollutant emitting activities in the Wattenburg Field and treated them all as a single “source” for permitting purposes. Although oil and natural gas facilities are typically regulated independently as “minor sources,” this is not the first time a regulatory agency has aggregated interrelated oil and natural gas facilities into a “major source” to require more rigorous permitting of these sources than would otherwise be required if they were treated individually.

Under the Prevention of Significant Deterioration (“PSD”) program, for example, a “major stationary source” is a “stationary source” that emits or has the potential to emit a certain quantity of pollutants. 42 U.S.C. §§ 7479(1), 7602(j). In turn, a “stationary source” is any building, structure, facility, or installation which emits or may emit a regulated pollutant. 40 C.F.R. § 51.166(b)(5). The federal regulations define “building, structure, facility, or installation” as all of the pollutant-emitting activities which: (1) belong to the same industrial grouping; (2) are located on one or more contiguous or adjacent properties; and (3) are under the control of the same person. Id. § 51.166(b)(6). From a legal perspective, the regulatory agencies must determine whether the oil and natural gas facilities meet the three factors listed above.

On January 12, 2007, the Acting Assistant Administrator of the EPA, William Wehrum, issued a memorandum entitled Source Determinations for Oil and Gas Industries, which indicated that proximity was the most informative factor in making source determinations for the oil and natural gas industries, suggesting that sites separated by more than a short distance (such as ¼ mile) are not “contiguous or adjacent” – and should generally not be treated as a single source. However, on September 22, 2009, Assistant Administrator Gina McCarthy issued a memorandum entitled Withdrawal of Source Determinations for Oil and Gas Industries. The McCarthy memorandum withdrew the Wehrum memorandum and specifically de-emphasized proximity as the determining factor in these determinations.

With regard to the Frederick Compressor Station, WildEarth Guardians twice petitioned the EPA to object to the permit renewal. Both times, the EPA objected and required the CDPHE to provide additional support for its permitting decision. On July 14, 2010, the CDPHE submitted a third and lengthy argument in favor of renewing the Title V permit for the compressor station. The environmental group subsequently petitioned the EPA to object for a third time. Finally, in the February 2, 2011 Order (set down more than four years after the initial Title V renewal was issued), the EPA denied the environmental group’s petition. The EPA conducted a thorough analysis of previous statements and determinations involving aggregation and determined that the CDPHE had properly determined the Frederick Compressor Station was a single source for purposes of PSD and Title V permitting. The EPA’s Order made two findings of particular interest relating to the issue: (1) despite the de-emphasis on proximity under the McCarthy memorandum, the CDPHE properly used distance as an important factor in the contiguous/adjacent analysis, when it was not “the determining factor” in its source determination; and (2) decisions regarding support facilities, while instructive in the aggregation analysis, are really significant only to determining whether two facilities should be treated as belonging to the same SIC code – and there is no reason to analyze them when the two facilities share the same SIC code.

PFCs - Still An Emerging Contaminant?

Posted on April 13, 2011 by Mary Ryan

I ran across perfluorinated chemicals (PFCs) as a site contaminant of concern for the first time last year when EPA required further assessment for PFCs at a site that was about to be closed out with no further action. I wanted to learn more about them and thought you might too, if this was a new acronym for you as well. PFCs have been used in a wide range of products, including consumer goods like Teflon, Scotchgard and Gore-Tex. PFCs consist of only carbon and fluoride. They are often referred to as “emerging contaminants” by EPA officials (from the National Exposure Research Laboratory and Office of Superfund Remediation and Technology Innovation) and others. Two of the most common PFCs are PFOS (perfluorooctane sulfonate) and PFOA (perfluorooctanoic acid, also known as C8). PFOS is no longer manufactured in the United States and PFOA is the subject of EPA’s 2010/2015 PFOA Environmental Stewardship Program, under which the phase-out of PFOA manufacturing by eight major companies is targeted for 2015.


PFCs have garnered world-wide attention over the last few years because of their prevalence and persistence. According to an expert I consulted, in the last two years there have been more than twenty papers on PFCs published in Environmental Toxicology and Chemistry, the journal of the Society of Environmental Toxicology and Chemistry. One environmental watchdog group suggests PFCs are “destined to supplant DDT, PCBs, dioxin and other chemicals as the most notorious, global chemical contaminants ever produced.” 

While not on the Hazardous Substance List, EPA has been actively dealing with PFCs since 2000, as described in the December 30, 2009 TSCA Action Plan for PFCs. There, EPA reported that while PFCs are found world-wide in the environment, wildlife and humans, significant adverse human health effects have yet to be found, though there is evidence of adverse effects in wildlife and laboratory animals. EPA is concerned about possible future human health effects. Further regulatory action under TSCA is expected in 2012. 

Earlier in 2009, the EPA Office of Water issued Provisional Health Advisories for PFOA and PFOS. EPA’s Office of Solid Waste and Emergency Response then developed toxicity values, which can be used as the basis for cleanup levels and risk-based screening levels in water and other media. As a result, sites where no hazardous substances had been found, or where known hazardous substances were remediated, may now need to be re-evaluated for PFOA and PFOS. Pending or completed property transfers may also be affected. Three states (New Jersey, Minnesota and North Carolina) have addressed levels of PFOS/PFOA in drinking water. 

Given the high level of interest in PFCs in the scientific community and the evolving regulation of PFCs, is it time to say PFCs have arrived as an environmental contaminant, though they may still be an emerging issue for environmental lawyers? More importantly, it remains to be seen how wide an impact the growing knowledge and increasing regulation of PFCs will have, at what cost, and where this should rank among priorities for federal and state regulation.

Connecticut Department of Environmental Protection Proposes New Spill Regulations

Posted on March 29, 2011 by Earl Phillips

On August 24, 2010, the Connecticut Department of Environmental Protection (DEP) proposed new regulations on the reporting of releases. The intent of the proposed regulations is to clarify when and how certain types of releases (spills) must be reported to the DEP.

Connecticut General Statutes Section 22a-450 requires that any spill or discharge of "oil or petroleum or chemical liquids or solid, liquid or gaseous products, or hazardous wastes which poses a potential threat to human health or the environment, shall immediately [be] report[ed]." However, the very broad language of, and the absence of specificity in, section 22a-450 has left some struggling to determine what events should not be reported. While there have been previous attempts to promulgate regulations on spill reporting, none have been adopted.

The draft regulations provide release reporting criteria, including a list of the threshold quantities and types of releases that should be reported. First, the draft regulations define "reportable materials" to mean "any chemical liquid, solid, liquid or gaseous products, including but not limited to hazardous substances, hazardous waste, waste oil, used oil, petroleum constituents, asbestos, radioactive material, pesticide, prohibited pesticide, restricted use pesticide, or polychlorinated biphenyls." Further, under the draft regulations, reporting obligations are triggered (1) when the amount of reportable material released is equal to or greater than ten pounds; (2) when the quantity of reportable material is unknown, but is likely to be equal to or greater than 10 pounds; (3) for any release of certain specified materials (including friable asbestos, certain pesticides, PCBs, chlorinated solvents, or certain radioactive materials), regardless of the amount of the reported material; and (4) for reportable materials released in certain locations (including releases in public water supply watershed land, aquifer protection areas, watercourses or wetlands, or storm, sanitary, or combined sewers and releases from underground storage tanks), regardless of the amount of the reported material. Imminent hazards, imminent threats of a release, observable releases from abandoned containers, and surface soil stains also trigger reporting obligations. Finally, the proposed regulations list the information that must be included in a report and the deadlines for reporting (within one hour of a spill).

The draft regulations contain exceptions for certain releases of known reportable materials contained and removed within two hours (it is unclear, however, how this two hour exception comports with the requirement to report a spill within one hour) and for certain releases of food products and untreated domestic sewage. The draft regulations also contain exemptions for certain air emissions, water discharges, restricted use pesticide applications subject to other regulations, and various incidental releases.

You Want to Preclude a Citizens' Suit? Pick Your Poison.

Posted on September 17, 2010 by Seth Jaffe

When clients are threatened with citizen suits – and particularly when the threatened litigation involves a matter where EPA or a state regulatory agency is heavily involved, the clients always want to know why they can’t somehow get rid of the citizen suit, given that EPA is on the case. The answer is that they can – but only in limited circumstances.

The recent decision in Little Hocking Water Association v. DuPont confirmed this answer in the context of RCRA. The Little Hocking Water Association provides public water to certain communities in Ohio, directly across the Ohio River from a DuPont plant which uses , also known as PFOA or C8 – also known as the contaminant du jour. According to the complaint, the Little Hocking wells have among the highest concentrations of C8 of water supply wells anywhere and its customers have among the highest C8 blood levels anywhere. Little Hocking Water Association thus sued DuPont under RCRA’s citizen suit provision, claiming that DuPont’s release of C8 had created an “imminent and substantial endangerment."

Section 7002 of RCRA contains provisions precluding such citizen suits if either EPA or a state “has commenced and is diligently prosecuting” an action under RCRA to abate the endangerment. In the DuPont case, releases of C8 from the DuPont facility had been the subject of at least two administrative orders on consent entered into by DuPont and EPA. However, consent orders aren’t the same as “an action” under § 7002 or § 7003 of RCRA – and they thus do not preclude a citizen suit.

DuPont tried the next best argument – that EPA had primary jurisdiction over the regulation of C8 – and that the existence of EPA’s regulatory authority and the issuance of the consent orders meant that the courts should defer to EPA. DuPont’s argument was that a court could not fashion a remedy in the case without essentially establishing a new cleanup standard for C8 and that doing so is the job of EPA, not the courts.

The Court gave the primary jurisdiction argument short shrift. As the Court noted, using the doctrine of primary jurisdiction in citizen suits would dramatically reduce the scope of such suits. Since Congress provided a citizen suit mechanism – and provided very specific, discrete, circumstances in which citizen suits are precluded – it doesn’t make sense to use primary jurisdiction to establish another defense, particularly where the defense would almost eliminate the remedy. 

The bottom line? If you don’t want to face a citizen suit (and you’re not in compliance), get yourself sued by EPA or your state regulatory agency. The mere existence of EPA or state regulation, even if requirements are embodied in a consent order, is not enough.

Product or Pollutant? You be the judge.

Posted on September 15, 2010 by Michael Rodburg

The unending war--or so it seems sometimes--between policyholders and insurers regarding coverage for "pollution" never ceases to reveal new ways at looking at the facts of American life. In the latest salvo, we find that what's good for rice farmers is bad for cotton farmers and therefore bad for those who help rice farmers.


In Scottsdale Insurance Co. v. Universal Crop Protection Alliance LLC, (8th Cir., No. 09-1774, September 8, 2010) the Eighth Circuit decided that a pollution exclusion clause in defendant's insurance policy barred coverage for its liability to cotton farmers adversely affected by a herbicide applied to rice farmers' fields.


The underlying suit was brought by a group of Arkansas cotton farmers against Universal Crop Protection Alliance LLC ("UCPA"), a member-owned cooperative and major purchaser, formulator and distributor of agriculture chemicals. A herbicide containing dichlorophenoxyacetic acid (i.e. 2,4 D), is beneficial in rice production and routinely applied to rice fields by spraying. Unfortunately, it was alleged, that herbicide destroys or seriously damages cotton crops. In Arkansas, the two crops are often grown in close proximity. In a suit commenced in federal court in the Eastern District of Arkansas in May 2007, a group of 80 Arkansas cotton farmers alleged that UCPA and four other herbicide manufacturers had allowed the rice field herbicide to drift off-target or, as later alleged, to re-loft from the fields to which they were applied, and drift onto their cotton fields thereby causing damage and destruction of their cotton crops. UCPA tendered the defense of the suit to its insurer, Scottsdale Insurance Co. The policy was a one year claims made policy that covered "physical injury to tangible property." The policy contained an exclusion from coverage for property damage that would not have occurred but for "the actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of pollutants." "Pollutants" was defined as including "any solid, liquid, gaseous or thermal . . . contaminant, including . . . chemicals." Scottsdale brought a declaratory judgment action seeking a declaration that it did not owe defense or indemnity for the underling suit by the cotton farmers against UCPA.


In March 2009, the district court granted the insurer's motion for summary judgment finding that the pollution exclusion clause barred coverage. On appeal, decided September 8, 2010, the Eighth Circuit affirmed, finding the pollution exclusion clause broad and unambiguous in the context of the case. Under either an off-target application or the later pleaded "relofting" theory, the insurer was relieved of coverage for the claim: "Neither theory 'arguably' falls outside the scope of exclusion."


The nearly metaphysical question which turns cases such as this one way or the other is when does a product become a pollutant? Would UCPA have been covered if a rice farmer also had cotton on the same farm? Or if the "customer" farmer claimed damage from the product to livestock that were inadvertently sprayed while grazing on the intended target field or ingested the herbicide while grazing nearby? Or, was the fact that the product "escaped" from its intended field of application to another's property enough to make it a pollutant once it went astray? Surprisingly, the insurance coverage question arises more frequently than one might expect, especially since the inception of the so-called "total" or "absolute" pollution exclusion clause. The Eighth Circuit opinion offers little guidance and less reasoning. Adopting a mechanical reading, the Court concluded that since 2,4 D was a toxic chemical and had "migrated," it was a pollutant and coverage was not available.


A far more satisfying approach--at least from a policyholder's perspective--is represented by the New Jersey Supreme Court's decision some five years ago in Nav-Its, Inc. v. Selective Insurance Co. of America, 869 A. 2d 929 (NJ 2005). There, a contractor was hired to paint and perform floor coating and sealing work in an office building. A building tenant claimed personal injury from exposure to the fumes. The insurer argued, similarly to Scottsdale that the pollution exclusion clause barred coverage as the claimed injury was the result of the release and consequent exposure to "pollutants," i.e. fumes. In holding for the insured, the New Jersey Supreme Court viewed its role as determining the underlying purpose for the exclusion, and concluded that product exposure of the type faced by the contractor was not "traditional" pollution. Painting and sealing fumes were a necessary consequence of handling the products and the damage they caused was within the coverage for products liability and completed operations.


Without belaboring the distinctions in the facts of these two cases, the point to be made is quite simple: All tangible products are composed of chemicals; they cause damage only when they come in contact with property or persons in a manner not intended by the original purpose for which they were made or used. If any such exposure automatically renders the product a pollutant, then coverage is illusory for a broad array of circumstances that are not "traditional" pollution in any sense of the word. Conversely, if the courts are inclined to examine policies for their "purpose" and "intent" from the perspective of the insured, they are far more likely to find coverage when the resulting exposure and harm is not "traditional" pollution.

A Bridge Too Far? EPA's War on Lead-Based Paint Takes Aim at Commercial Buildings

Posted on June 30, 2010 by Charles Efflandt

No one doubts that EPA’s war on lead-based paint serves the cause of mitigating an established health threat. With children being particularly at risk, the regulations to date have focused on lead-based paint in older homes and other “child-occupied facilities.” On May 6, 2010, however, EPA gave notice of its intent to take the battle to an undefined set of commercial and public buildings. Can a full-scale assault on commercial facilities, which will involve a more complex set of regulatory variables and which will venture farther from the core health risk concerns, succeed in achieving a proper balance of competing factors?


EPA’s May 6, 2010 Advance Notice of Proposed Rulemaking announcing the next step in the lead-based paint campaign was published only days after the April 22, 2010 effective date of the controversial Renovation, Repair and Painting Rule (“RRP Rule”). That rule regulates renovation and repair activities disturbing lead-based paint in older homes and child-occupied facilities. The RRP Rule affects contractors, landlords and others who perform RRP work for compensation.


The RRP Rule includes provisions for the required certification (for a fee) of firms performing covered RRP work, the training and certification (at a significant cost) of “Certified Renovators” through EPA-accredited classes, the required use of detailed RRP work practices when performing covered activities, the retention of compliance records, and the verification of compliance with work practice obligations. Even though the RRP Rule has a relatively narrow focus - residences and other child-occupied facilities - its requirements have generated substantial controversy.


Because the RRP Rule applies to numerous trades and contractors, as well as to certain landlords and other persons, issues related to obtaining the required training, safe implementation of the work practice requirements, costs of compliance and the possibility of a $37,500 per day, per violation penalty are only now being confronted by the regulated community as well as the regulators. Small contractors may be forced out of business, impacting competition. Needed RRP work may not be performed due to cost. Lead-contaminated waste disposal will create new environmental/health problems partially offsetting the benefits of the RRP Rule. Suffice it to say, EPA has not yet solved the numerous problems and complexities of implementing even these regulations focused on older homes and child-occupied facilities.


With this background, and setting aside for the moment legal mandates, one can reasonably question whether EPA is prepared to set its sights on a significantly more complex regulatory challenge- the renovation and repair of an estimated two to three million commercial and public facilities constructed prior to 1980. The ANPR includes no proposed language. Rather, the public is invited to respond to over 100 detailed questions and data requests.


At this time, the scope of EPA’s assault on the renovation and repair of commercial and public buildings is unknown. No current limitations on covered “commercial” and “public” buildings exist and both exterior and interior renovation and repair work are included in the ANPR. Unresolved questions include: What renovation and repair work should be covered? What activities create the most risk? Should exposure pathways be broadened to include nearby properties? How should the substantial amount of lead-contaminated waste be handled to avoid creating a different health and environmental hazard?


This much is known. The regulatory variables associated with extending the war on lead-based paint to commercial and public buildings are more numerous and the targeted health risks have expanded. I suggest that there is a real possibility that the regulations could fail to appropriately balance the legitimate interests of contractors, building owners and the public with the known and perceived health risks. Let us hope that the regulated community weighs-in on these issues and that the EPA gives careful thought to this next step in its campaign against lead-based paint.


The public comment period for this proposal ends July 6, 2010.

EPA Issues New Requirements for Pesticide Discharges and Sets Stricter Standard for Sulfur Dioxide

Posted on June 23, 2010 by John Crawford

The Environmental Protection Agency (EPA) last week announced new permit requirements for pesticide discharges and also issued a stronger standard for sulfur dioxide (SO2) emissions.  These new regulations come on top of other efforts by the EPA to control and limit pollutants and the notice earlier this year that EPA will enforce stricter standards for ground-level ozone. 

Pesticide Discharges

In response to the  April 2009 National Cotton Council v. EPA  decision wherein the court found that pesticide discharges to U.S. waters were pollutants, the EPA has proposed a new permit on pesticide use.  According to a release by the agency, the proposed permit “would require all operators to reduce pesticide discharges by using the lowest effective amount of pesticide, prevent leaks and spills, calibrate equipment and monitor for and report adverse incidents.”

The proposed permit covers the following pesticide uses:
- Mosquito and other flying insect pest control
- Aquatic weed and algae control
- Aquatic nuisance animal control
- Forest canopy pest control

Importantly, the proposed permit does not include earthbound applications to control pests on agricultural crops or forest floors.  However, the agency could decide to regulate these activities through  future rule-making.

The EPA estimates that the new regulations would affect approximately 35,000 pesticide applicators nationally.  The agency is currently soliciting public comment on the permit and plans to finalize it by December of this year.  The new permit requirements will take effect in April of 2011.

Sulfur Dioxide Standard

EPA has issued a new health standard for sulfur dioxide emissions. The new  rule changes the current 24-hour and annual standards to an hourly health standard of 75 parts per billion (ppb).  The existing SO2 standards were established in 1971 and included a 24-hour standard of 140 ppb and an annual average standard of 30 ppb.

Additionally, EPA is also changing the monitoring requirements for SO2, requiring that monitors be placed where SO2 emissions impact population at certain levels.  The new monitors must be operational by January 1, 2013.

If You Thought That State RCRA Enforcement Order Was a Bar to Any Citizen Suit, Think Again

Posted on June 21, 2010 by Karen Aldridge Crawford

Natural Resource Defense Council, Inc. v. County of Dickson, Tennessee, 2010 U.S. Dist. LEXIS 32423 (M.D. Tenn. Apr. 1, 2010).

A district court denied Defendants’ motion to dismiss an environmental group’s claims under the citizen suit provisions of RCRA to abate an alleged imminent and substantial endangerment to human health and the environment posed by trichloroethylene and perchloroethylene disposed at a landfill.  The state agency had issued an order addressing this issue, and so Defendants, among other defenses, asserted that the group’s claims should be dismissed pursuant to 42 U.S.C. § 6972(b)(2)(B)(iv) which bars citizen suits where a court order or administrative order has been issued.  According to the Court, "Administrator" is defined as the "Administrator of the Environmental Protection Agency," and thus the Court was not persuaded by Defendants' argument that Tennessee had stepped into the shoes of the EPA administrator for purposes of enforcing the federally-mandated hazardous waste program based on a memorandum of understanding (MOU) between the state and EPA.  According to the Court, the MOU referenced Subchapter III, while the provision governing "imminent hazards" is located in Subchapter IV.  Therefore, the MOU did not authorize the state to step into the shoes of the EPA administrator for purposes of bringing an action or issuing an order regarding an imminent hazard. That authority is retained by the EPA administrator.  The Court also found that despite Defendants’ assertions otherwise, the group had standing to sue, its claims were not moot, and the doctrines of abstention and primary jurisdiction did not warrant dismissal of the case.

No New Standards for Chemical Plant Security This Year

Posted on June 8, 2010 by Susan Cooke

Despite earlier expectations, it appears increasingly unlikely that the House and Senate will consider passage of legislation this year on the Chemical Facility Anti-Terrorism Standards (“CFATS”) program.[1] Under that program the Department of Homeland Security (“DHS”) adopted regulations at Title 6 Part 27 which list about 300 chemicals of interest, each with a screening threshold quantity. Facilities with a chemical of concern above the screening threshold quantity are required to complete a screening questionnaire for review by DHS. 

If the DHS determines that the facility presents a high level of security risk, it notifies the facility which must then prepare a security vulnerability analysis and file the analysis with DHS. This analysis must address each vulnerability that is identified, and it must satisfy security performance standards set forth in the regulations, most of which are phrased in very general terms. DHS may inspect such high risk facilities to assess their compliance with regulatory requirements, and it may issue orders assessing civil penalties which it can enforce through an adjudicatory hearing process.

The statutory provisions governing CFATS are due to expire on October 4, 2010, and Congress was expected to consider substantive revisions to the program and extend it for several years before its expiration in October. Two bills, H.R. 2868 and S. 2996, were expected to receive serious attention in crafting that legislation.

[1] The program was established under the Department of Homeland Security Appropriations Act of 2007, § 550, Pub. L. 109-295, and was extended by the Department of Homeland Security Appropriations Act of 2010, § 550, Pub. L. 111-83.


H.R. 2868 passed the House in November 2009 and is entitled the “Chemical and Water Security Act of 2009”. It would extend the program’s current requirements to facilities that treat drinking water or wastewater, with the requirements administered by the U.S. Environmental Protection Agency and state authorities rather than DHS. The House bill would also require high risk facilities to assess inherently safer technology (“IST”) alternatives (referred to in the bill as “methods to reduce the consequences of a terrorist attack”). In addition, the bill would provide for citizen petitions seeking DHS investigation of a chemical facility allegedly in violation of CFATS requirements.

The Obama Administration has advocated modifications to CFATS that are similar to the provisions of H.R. 2868, and Senator Lautenberg who chairs the Senate’s Environment and Public Works Committee has stated his intention of introducing a chemical security bill which is expected to be at least as stringent as the H.R. 2868. However, he has yet to introduce such a bill. 

S. 2996 has received the support of several industry sectors and is entitled “Continuing Chemical Facility Antiterrorism Security Act of 2010”. It would extend CFATS for another five years, leaving the current provisions essentially intact except for the addition of voluntary chemical security training and exercise programs. 

It now appears that the House and Senate will extend statutory authorization of the CFATS program for another year, with supplemental funding provided in the Homeland Security budget bill now under consideration. Of course, the recent oil spill in the Gulf of Mexico could engender renewed interest in the earlier adoption of an IST provision which has been the subject of the greatest discussion. Indeed, one Green Peace blog points to failure of the shut off valve on the oil rig where the Gulf of Mexico oil spill occurred as demonstrating the need for immediate adoption of such a provision. However, absent a major catastrophe on land or connected to a terrorist plot involving a chemical facility or refinery here in the United States, legislative action on proposed changes to the CFATS program is not expected to occur until after the fall elections.


Posted on May 12, 2010 by Larry Ausherman


On May 4, 2010, EPA released its proposed rule to regulate disposal and management of coal combustion residuals (“CCRs”) from coal-fired power plants. The 563 page proposal presents for public comment two alternative approaches. In one approach, EPA would regulate CCRs as a new category of “special wastes” under Subtitle C of RCRA when they are destined for disposal in landfills or surface impoundments. Under the alternative approach, EPA would use Subtitle D of RCRA to set performance standards for disposal of CCRs in landfills and impoundments that would be enforced principally by States. Under both proposals, beneficially used CCRs would be exempt from hazardous waste regulation under RCRA. Neither proposal would have EPA regulate placement of CCRs in mines or non-minefill uses of CCRs at coal mine sites.


What are CCRs?

CCRs are residual materials that remain after combustion of coal to generate electric power. This material is also sometimes referred to as coal ash, coal combustion waste, or coal combustion byproducts. Large volumes of CCRs are generated by power plants in the United States. Some CCRs are beneficially used in other products or processes, some are returned to mines as reclamation material or for non-minefill uses and the rest is disposed at landfills.

How are CCRs Regulated Now?

In August 1993 and May 2000, EPA considered whether to regulate CCRs as a hazardous waste under Subtitle C of RCRA, and determined not to do so. Instead, it applied the Bevill Amendment exception (for mining activities) to CCRs and left open the possibility that States may regulate disposal of CCRs. The Office of Surface Mining in the United States Department of the Interior (“OSM”) has authority to regulate placement of CCRs in mines as part of coal mine reclamation.


Why is EPA Revisiting its Previous Determinations Not To Regulate CCRs Under RCRA, Subtitle C?

In December 2008, in Kingston, Tennessee, a retaining wall of a TVA surface impoundment used for disposal of CCRs breached, and CCRs saturated with water from the impoundment were released. The release prompted renewed scrutiny of CCR disposal practices and, in large part, prompted EPA’s decision to revisit previous determinations not to regulate CCRs. EPA’s re-evaluation of CCR disposal since the Kingston release has prompted substantial debate resulting in the delayed announcement of EPA’s May 4, 2010 proposal.


Two Options for Regulation.

In light of strongly held opposing views about regulation of CCRs and the EPA’s desire to avoid further delay in issuing a proposed rule, EPA’s proposal is in the somewhat unusual format of two alternative options. After a 90 day public comment, EPA will decide upon an approach to regulation.


Under the more stringent of the two options, EPA would reverse its previous Bevill Amendment determination, address CCRs as a “special wastes” under RCRA Subtitle C, and regulate the disposal of CCRs in landfills or surface impoundments. “Special wastes” would be a new waste category that would be subject to some, but not all, of Subtitle C requirements applicable to hazardous waste. The Subtitle C option would regulate CCRs from the point of generation to final disposal and would include regulation of siting, liners, run-on and run-off controls, ground water monitoring, fugitive dust controls, financial assurance, corrective action and closure. The Subtitle C approach is favored by environmental groups but opposed by electric power generators because it would significantly increase CCR disposal costs.


The less stringent alternative regulatory option proposed by EPA would leave the Agency’s previous Bevill determination in place so that CCRs would not be regulated under Subtitle C of RCRA. However, CCRs disposed of in surface impoundment or landfills would be subject to RCRA Subtitle D. This option would not require permits from EPA, and requirements would be enforced primarily by States rather than EPA.



Certain uses and disposals of CCRs are not covered by EPA’s proposed rule making. First, EPA is not proposing to change the existing regulatory exemption from hazardous waste regulations for beneficially used CCRs. Examples of beneficial uses of CCRs may be road construction, agriculture, and building products. EPA is seeking comment on potential refinements for certain beneficial uses. Second, EPA is not proposing to address placement of CCRs in coal mines or non-minefill uses of CCRs at coal mines. Instead, OSM, in consultation with EPA, will consider recommendations of the National Research Council and take the lead in developing national standards for placement of CCRs at coal mines. Third, EPA has not proposed to revise its previous Bevill determination for CCRs generated by non-utilities.


Public Comment.

A 90 day public comment period will begin when the proposed rule is published in the Federal Register. Comments can be submitted to EPA, identified by docket ID No. EPA-HQ-RCRA-2009-0640.

When a Discharge Isn't

Posted on March 8, 2010 by Brian Rosenthal

For all environmental lawyers and especially for business advisors and bankruptcy lawyers, a very important case was decided by the 7th Circuit Court of Appeals in fall 2009. The case concerns the effect of a bankruptcy discharge from a 1986 bankruptcy filing versus an affirmative Resource Conservation and Recovery Act (“RCRA”) clean-up injunction. The question is whether the injunction is a discharged claim in bankruptcy. The Court of Appeals concludes a mandatory injunction to perform clean-up does not equate to an equitable remedy giving rise upon breach to a right to payment, which is the covered equitable remedy subject to discharge.


Here, the formerly bankrupt company’s reorganization left it no choice but to have this particular clean-up conducted by a third party at an estimated cost of $150,000,000. The Court found, however, the clean-up order did not result in a right to payment because RCRA does not allow either a demand for clean-up costs or any monetary relief. 


Finding that all equitable orders will inevitably require the ordered party to spend money to comply, the Court concludes discharges are limited to matters where the claim gives rise to a right to payment.  Such situations arise where an equitable decree can not be executed and results in a right to seek money damages and not merely those that impose a cost on the defendant.  


This case reaches a conclusion contrary to a 6th Circuit case and is distinguishable from the landmark Supreme Court ruling in Ohio v. Kovacs.  In Kovacs a receiver was appointed to take possession of the debtor’s assets so it could obtain money to pay for an ordered clean-up, and the Supreme Court found the receiver, therefore, was seeking money rather than an order that the debtor clean up the contaminated site. 


The holding in this 7th Circuit case is certainly one that will likely reverberate around the country for years to come. United States v. Apex Oil Co., Inc., 579 F.3d 734 (7th Cir. 2009).

Tenant Liability Under CERCLA: Is It time To Move Beyond Enforcement Discretion Guidance?

Posted on December 18, 2009 by Charles Efflandt

Arguably the most significant moderation of CERCLA’s harsh “owner” liability scheme occurred in 2002 through the enactment of the “Brownfields Amendments.” Included in those amendments was the creation of new liability protection for “Bona Fide Prospective Purchasers” (“BFPP”) who acquire ownership of a facility after January 11, 2002.


A relatively straightforward roadmap for prospective purchasers to achieve BFPP status is set out in the Brownfields Amendments and the subsequently-promulgated All Appropriate Inquiry rule. The extent to which tenants might obtain protection from possible “owner” liability has, however, always been far less certain.


The potential applicability of this liability defense to tenants is currently limited to a short parenthetical in CERCLA §101(40). Specifically, a “tenant of a person” that achieves BFPP status shares the liability protections of the property purchaser. Although this “derivative” BFPP status established by the Brownfields Amendments helped clarify the reach of the liability defense with respect to tenants, a number of questions remained unanswered. For example, what happens if the property owner loses its BFPP status through non-compliance with the statutory requirements? Also, does the language of the amendment as it relates to tenants preclude a tenant from independently achieving BFPP status?


Earlier this year, EPA’s Office of Enforcement and Compliance Assurance issued an Enforcement Discretion Guidance (“Guidance”) that addresses the applicability of the BFPP definition to tenants. That Guidance clarifies how EPA intends to exercise its enforcement discretion with respect to tenants “on a site-by-site” basis. In essence, the Guidance provides:



  • Tenants with “derivative” BFPP status will lose that status if the property owner ceases to be a BFPP for non-compliance with one or more of the statutory requirements. Nevertheless, EPA may exercise its enforcement discretion and not pursue the tenant under an owner liability theory if the tenant satisfies certain conditions, including not having disposed of hazardous substances on the property and fully cooperating with EPA in its response actions.
  • Tenants whose lease documents establish sufficient “indicia of ownership” and who satisfy all requirements of CERCLA §101(40)(A)-(H) and 107(r) may be deemed to have independently achieved BFPP status and thus possibly avoid an enforcement action under CERCLA’s owner liability provisions. Indicia of ownership include the term of the lease, the range of permitted property uses by the tenant, reserved rights on the property by the owner, etc.


EPA’s Guidance is a welcome clarification of how the agency intends to enforce CERCLA’s owner liability provisions in these situations. However, the Guidance goes beyond the derivative status language in the Brownfields Amendments in its discussion of potential limitations on tenant “owner” liability. The problem is that a guidance is just that. It offers none of the statutory certainty that prospective purchasers now enjoy under CERCLA.


Because of the importance of tenant-operated properties to the economy in general and to the development of Brownfields property in particular, I would submit that tenants should be afforded the same clarity and certainty with respect to potential liability under CERCLA as those who acquire title to the property. As the Brownfield Amendments are largely self-implementing, that clarity and certainty is likely to be achieved only through further amendments to the liability provisions of CERCLA.

PCB-Containing Caulk: How Old Is Your Building?

Posted on November 3, 2009 by Linda Bochert

The U.S. Environmental Protection Agency (EPA) has found evidence that buildings constructed or renovated between 1950 and 1978 may have PCBs at high levels in caulk around windows and door frames, between masonry columns and in other building materials. Congress banned the manufacture and most uses of PCBs in 1976.


On September 25, 2009, EPA issued general guidance to communities as well as specific guidance to help school administrators and teachers reduce the risk of PCB exposure to children, and to assist contractors renovating buildings with suspect caulk.


Although EPA has generated specific guidance for school administrators and teachers, all buildings constructed during this time period may have PCB-containing caulk. EPA’s guidance helps to identify the extent of potential risks and to determine if mitigation steps are needed. EPA will work directly with building owners and administrators facing serious problems to help develop a practical approach to reduce exposures and prioritize caulk removal. 


EPA has also identified several unresolved scientific issues that must be better understood to determine the magnitude of the issue and to develop the best long-term solutions. As a result, EPA will conduct new research to better understand the risks posed by PCB-containing caulk. EPA plans to use these research findings to make additional recommendations to further minimize exposure and generate an action plan for caulk removal.


While the materials EPA released identify the issue of PCB-containing caulk as a concern, the agency advises there is insufficient information concerning the scope or severity of the issue to provide property owners and school administrators with very concrete advice about next steps.  Unfortunately, this can only leave both property owners and school administrators wondering, "just how big a concern is this and how should I respond?" Like lead paint, asbestos, mold, indoor air quality and other types of building hazards, PCBs can be added to the list of risks that real estate professionals and lawyers will have to address in building transactions.


For more information, contact EPA’s toll free hotline at 1-888-835-5372 or the EPA website located at:

Essential Ingredients For Risk Transfer on Display in N.J.

Posted on October 15, 2009 by George von Stamwitz

Last month, Missouri based Environmental Liability Transfer (ELT) purchased a heavily contaminated site from Asarco in Perth Amboy, New Jersey. Due to bankruptcy court deadlines, the transaction was put together and closed in less than 90 days. The 70-acre site was a challenging candidate for risk transfer due to the perpetual nature of the risk. However, the transaction had the following essential components of a successful environmental risk transfer:

  1. a buyer (ELT) that was willing to take long term risk, beyond the term of environmental insurance;
  2.  a sophisticated seller that was facing an unattractive monetization of the remediation risk, in this instance an estimation proceeding in bankruptcy court. Monetization is a often also caused by regulatory financial assurance requirements and in the context of mergers and acquisitions;
  3. an active remedy of modest duration (in this instance stabilization of residuals and containment) that is defined with sufficient technical and regulatory certainty that partial collateralization of ELT's indemnity by "cost cap" insurance (in this case by Zurich) is practicable.

            As mergers and acquisitions return from hibernation and financial assurance requirements become more stringent after the demise of several major corporations, interest in risk transfer is sure to grow. Not every deal is a good candidate, but those transactions that have the factors described above are worth considering to achieve a favorable, short term monetization of environmental risk.

New Jersey Follows Massachusetts into the World of Licensed Environmental Consultants and Privatized Cleanup Oversight

Posted on July 9, 2009 by David Farer

On May 7, 2009, New Jersey enacted the Site Remediation Reform Act (S.1897/A.2962). SRRA, with its new Licensed Site Remediation Professional (“LSRP”) Program, is having a far-reaching impact on the way transactions and redevelopment projects are being planned and handled in New Jersey.


Following the Massachusetts Licensed Site Professional program, SRRA establishes a licensing procedure for consultants and contractors to be certified as LSRPs and overseen by a licensing board. 


In most cases New Jersey DEP will no longer be required or authorized to review and approve investigation and cleanup plans in advance, or to issue No Further Action letters and Covenants Not To Sue when cleanups have been wrapped up. Instead, LSRPs will determine the propriety and conclusion of investigations and cleanups, and will issue the final sign-off document, which is now to be known as a "Response Action Outcome" ("RAO"). LSRPs – rather than DEP – will determine the required amount of any financial assurance, and will determine when and to what extent the financial assurance can be reduced as a cleanup progresses. 


Once the LSRP issues the RAO, the party conducting the cleanup will be deemed to have received a Covenant Not to Sue by operation of law. Following an LSRP’s issuance of an RAO, DEP will have three years to audit the LSRP’s work, though the bases for DEP to invalidate an RAO are limited.


By August 7, 2009, a temporary licensing program must be operational, and by November 7, DEP must issue interim rules for implementing the new law. Once the interim rules and temporary licensing program are in place, all new projects subject to the state's cleanup laws – including transaction-triggered investigations and cleanups under the state's Industrial Site Recovery Act – will be overseen by LSRPs rather than DEP, unless they fall into specific exceptions such as sites ranked most highly on a new ranking system to be established by DEP under the reform law.

Parties currently under DEP oversight for existing cases will have up to three years to switch over to the LSRP program.


Pursuant to the reform law, DEP is directed to establish a permitting program for institutional and engineering controls, with specific financial assurance requirements. (New Jersey has not adopted the Uniform Environmental Covenants Act.)


The state's innocent purchaser protections are modified so that LSRP-certified work is deemed equivalent to that overseen and approved by DEP.


DEP is directed to establish, within a year, "presumptive remedies" for cleanups of residential properties, schools and day care facilities. Such projects are to be cleaned up to unrestricted use standards, or pursuant to a presumptive remedy, with certain exceptions available on a case-by-case basis.


The reform law also alters reporting obligations in situations where spills and discharges are discovered. Until now, it has been the responsibility of a property owner or operator – not a third party such as a consultant or potential purchaser – to report discovery of contamination to DEP, except as to spills or discharges from regulated underground storage tank systems. Under SRRA, however, LSRPs will now have specific affirmative obligations to report knowledge of contamination directly to DEP in a variety of settings. 

DEP has been gearing up for the new program. Aside from its current efforts in development of the interim rules and temporary licensing procedures, DEP is also in the process of developing standard operating procedures, applications, fees and forms, and guidance documents covering subjects such as mandatory timeframes and presumptive remedies.

Tenth Circuit Holds Collateral Source Rule Inapplicable to CERCLA 113 Actions

Posted on July 8, 2009 by Delmar Ehrich

Friedland v. Indus. Co, No. 08-1042, 2009 U.S. App. LEXIS 11660 (10th Cir. May 29, 2009). 


The United States Court of Appeals for the Tenth Circuit has held that the collateral source rule is inapplicable in CERCLA actions, affirming the district court’s grant of summary judgment to defendants on the ground that Mr. Friedland already recouped all of his recoverable costs from other persons and therefore had no damages to recover. 


The plaintiff, Mr. Friedland, is the former director and president of the Summitville Consolidated Mining Company, Inc. (“SCMCI”). SCMCI operated a gold mine from 1984 to 1992. Defendants-appellees helped construct the mine and provided quality assurance regarding the heap leaching system – where cyanide solution was sprayed on gold-bearing ore to remove the gold. 


SCMCI declared bankruptcy and abandoned the mine in 1992. EPA thereafter undertook actions to address acid mine drainage and other conditions at the facility. In 1996, the United States and the State of Colorado sued Mr. Friedland under CERCLA § 107 to recover the costs of these measures. Mr. Friedland settled the governments’ claims against him for approximately $20 million, after incurring legal fees in excess of $28 million. 


Mr. Friedland brought several actions against contractors that had built the mining facility. He entered into a series of settlement agreements with these parties or their insurance companies pursuant to which he recovered in excess of the $20 million he agreed to pay to settle the cost-recovery claims by the State of Colorado and the United States. In the latest action, Friedland sued The Industrial Company and another defendant. The defendants moved for summary judgment on the ground that Mr. Friedland had no damages or right to contribution under CERCLA § 113(f) because he had recovered in an amount exceeding the payment made to the United States and State of Colorado. The district court granted summary judgment and Mr. Friedland appealed, arguing that: (1) the collateral source rule prohibits crediting the defendants in the amount of the settlement money he received from the insurance companies; and (2) the settlement money should be credited toward the $28 million in legal fees as opposed to the $20 million settlement amount. 


The Tenth Circuit upheld the district court’s ruling, holding that the collateral source rule does not apply to CERCLA contribution actions. The Tenth Circuit differentiated CERCLA contribution action which involves “two or more culpable tortfeasors” from personal injury actions where innocent plaintiffs seek to be made whole. The Tenth Circuit held that allowing a CERCLA contribution plaintiff to recover more than the response costs he paid out of pocket “flies in the face of CERCLA’s mandate to apportion those costs equitably among the parties” and would create a windfall for those responsible for the pollution. CERCLA § 9613(f)(1).


The Tenth Circuit also held that under Hess Oil Virgin Islands Corp. v. UOP, Inc., 861 F.2d 1197 (10th Cir. 1988) and Burlington Northern Railroad, 200 F.3d 679 (10th Cir. 1999), the defendant-appellees were entitled to a full credit in the amount of the settlements Mr. Friedland received if the damages he alleged against defendant-appellees were the same as those addressed the settlements. The settlements did not expressly allocate the settlement money between settling the underlying litigation or to legal defense. The Tenth Circuit held that Mr. Friedland’s failure to allocate the settlement monies between legal fees and response costs was fatal to his contention that the defendants-appellees were not entitled to a credit in the settlement amount. Therefore, the Tenth Circuit upheld the district court’s finding that there was no basis to allocate the settlement money between the clean-up costs and legal fees, and defendants-appellees were entitled to a full credit in the amount of the settlements.