Spring 2023 Agenda Previews Continued U.S. Significant Environmental Regulatory Action
On June 13, 2023, the Biden administration released the 2023 Spring Unified Agenda of Regulatory and Deregulatory Actions (Agenda). The Agenda lists federal agencies’ planned “short-term” regulatory actions to be taken over the next 12 months and “long-term” actions under development. The dates listed in the Agenda are based on publication dates in the Federal Register. Stakeholders should take note, as the Agenda provides a window into the administration’s priorities and strategies:
EPA Seeks Public Input on Regulating Seven More PFAS for Superfund
On April 13, 2023, the U.S. Environmental Protection Agency (EPA) issued an Advance Notice of Proposed Rulemaking (ANPRM) asking the public for input concerning potential designations of seven per- and polyfluoroalkyl substances (PFAS) under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Based on public input and data to be received, EPA will evaluate whether these PFAS may present substantial danger to the public health or welfare or the environment.
EPA Amends All Appropriate Inquiries Rule
On December 15, 2022, the U.S. Environmental Protection Agency (EPA) published a Final Rule to amend its All Appropriate Inquiries (AAI) Rule. The AAI Rule is the EPA regulation that sets the process for conducting an inquiry into a property’s environmental conditions in order to obtain protections from liability under the federal Superfund Law, the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The amended rule updates the reference to the latest American Society for Testing and Materials (ASTM) E1527-21 Standard Practice as one method for conducting a Phase I Environmental Site Assessment (Phase 1 ESA) that would satisfy EPA’s AAI requirements. The rule takes effect on February 13, 2023 — but allows a one-year transition before EPA will no longer accept the former ASTM Phase I ESA standard (E1527-13) as meeting the AAI requirement.
D.C. Circuit Rejects Challenge to CERCLA Site Listing
On July 8, 2022, the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) rejected a challenge to the listing of a groundwater contamination plume on the National Priorities List (NPL). The decision in Daikin Applied Americas, Inc. v. EPA reaffirms the difficulty that attends challenging NPL listings as well as the wide latitude Congress granted the Environmental Protection Agency (EPA) under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) to define the scope of Superfund sites during the listing process. (more…)
Sixth Circuit: Long-Litigated Superfund Claims Barred by Statute of Limitations
On April 25, 2022, the U.S. Court of Appeals for the Sixth Circuit addressed the application of the statute of limitations under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund) in Georgia-Pacific Consumer Products LP et al. v. NCR Corp. NCR is the latest in a long line of cases stemming from PCB contamination related to carbonless copy paper manufacturing and recycling. In NCR, the court concluded that the claims of Georgia Pacific (GP) against NCR, International Paper, and Weyerhaeuser for costs stemming from a series of administrative settlements and court judgments were barred by CERCLA’s statute of limitations. (more…)
EPA Proposes to Adopt New American Society for Testing and Materials Standard, Including PFAS, for CERCLA Phase I All Appropriate Inquiry
On March 14, 2022, the U.S. Environmental Protection Agency (EPA) issued a proposed and direct final rule, which adopts the E1527-21 standard issued by the American Society for Testing and Materials (ASTM), for All Appropriate Inquiries (AAI) required under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). (more…)
Supreme Court Addresses What Triggers a Contribution Claim Under CERCLA
On May 25, 2021, the U.S. Supreme Court issued a unanimous opinion in a case addressing whether a settlement agreement resolving Clean Water Act (CWA) liability can ripen a cause of action for contribution action under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund). For companies crafting settlement language related to environmental contamination or preparing to file contribution claims, Guam v. United States provides an important consideration regarding what potential liabilities to include or leave out.
House Introduces PFAS Action Act of 2021
On Tuesday, April 13, Reps. Debbie Dingell and Fred Upton, both D-Mich., introduced the PFAS Action Act of 2021, seeking further regulation of per- and polyfluorinated substances (PFAS). Most notably, the bill would require the U.S. Environmental Protection Agency (EPA) to take action to address two PFAS chemicals — PFOA and PFOS — through a number of regulatory provisions: designating PFOA and PFOS as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act, designating PFOA and PFOS as hazardous air pollutants under the Clean Air Act, and requiring EPA to establish national drinking water standards for PFOA and PFOS. (more…)
Supreme Court Agrees to Take Up CERCLA Suit Against U.S. Government
On January 8, 2021, the U.S. Supreme Court took up a Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) dispute involving the territory of Guam and the United States. At issue in Guam v. United States is who must pay for cleanup costs associated with a landfill formerly operated by the U.S. Navy, into which the Navy deposited spent munitions, chemicals, and other waste. Although Guam asked EPA to address the landfill under CERCLA, the agency proceeded under the Clean Water Act (CWA) instead, and in 2004, Guam entered into a consent decree under the CWA under which the territory agreed to close and remediate the landfill.