Superfund, RCRA, and Contaminated Sites
As companies seek to navigate Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund) regulations; Resource Conservation and Recovery Act (RCRA) corrective action; and other contaminated site remediation and ensuing litigation, Morgan Lewis lawyers who represent clients in this complex area of environmental law offer their analyses and thinking while providing access to primary source materials and related events.
In addition to CERCLA and RCRA, our guidance related to contaminated site cleanup efforts and the laws governing them covers their state counterparts as well as related regulations under the Clean Water Act (CWA), Clean Air Act (CAA), Safe Drinking Water Act (SDWA), Emergency Planning and Community Right-to-Know Act (EPCRA), and Oil Pollution Act (OPA). We also have substantial experience with sites being remediated under the Formerly Utilized Sites Remedial Action Program (FUSRAP) governing sites with environmental contamination that resulted from early United States Atomic Energy Commission activities.
As counsel to the Superfund Settlements Project (SSP) and RCRA Corrective Action Project (RCAP), two multi-industry advocacy organizations focused on reforming and improving the US Environmental Protection Agency’s (EPA) administration of the Superfund and RCRA Corrective Action programs, as well as the Sediment Management Working Group (SMWG), Morgan Lewis has front-line insight into the efforts to control costs and improve efficiencies for regulated industries.
We have counseled clients in regulatory proceedings and litigation matters involving more than 100 contaminated sites across the United States and carefully monitor evolving regulatory changes and case law developments that impact contaminated site resolution. As common counsel to numerous sites across the county, we understand the array of issues arising from multiparty sites and leverage our knowledge to help shape cost-effective, timely solutions for our clients.
ALWAYS IN THE KNOW
In 2021, the EPA updated its model remedial design/remedial action consent decree and statement of work to streamline and accelerate CERCLA settlement negotiations and address environmental justice concerns of Superfund sites in impacted communities. See our LawFlash EPA Updates Model Remedial Design/Remedial Action Consent Decree and Statement of Work to learn more. Morgan Lewis lawyers have negotiated multiple consent decrees under the new model and bring our practical experience to the negotiation and implementation of the current model documents.
The environmental policy agenda of the current US administration promises to reshape the investigation and remediation of contaminated sites, including returning to a focus on increasing the efficiency of site cleanups and speeding up return to productive use. Our lawyers skillfully guide clients through these changing priorities and work with EPA representatives to implement creative solutions for effective cleanups.
RECENT UPDATES
June 2, 2025 - Emerging Trends in State-Level PFAS Regulation and Litigation
As the US Environmental Protection Agency (EPA) under Administrator Lee Zeldin lays out an ambitious regulatory agenda related to perfluoroalkyl and polyfluoroalkyl substances (PFAS), state lawmakers, state attorneys general, nongovernmental organizations, and plaintiffs’ lawyers continue to impact evolving compliance and liability risk.
May 2, 2025 (Updated May 16, 2025) - US EPA Announces Ambitious PFAS Agenda
The ambitious agenda also includes a variety of other agency goals including addressing information gaps, improving PFAS testing methods, and coordinating EPA’s efforts with Congress, states, tribes, and other federal agencies.
April 16, 2025 - TCE Rule Takes Effect but Ultimate Fate Is Still Unknown
The US Environmental Protection Agency’s final rule to regulate trichloroethylene recently went into effect, triggering compliance deadlines for implementing the prohibition and Workplace Chemical Protection Programs even while the rule’s interim inhalation exposure limit remains subject to judicial review.
March 13, 2025 - In Yet Another Decision Restricting EPA Authority, US Supreme Court Holds EPA Cannot Set CWA Permit Limits
The Court’s decision renders unenforceable limitations in CWA permits conditioned on the quality of the receiving waters and again makes clear the Court will not defer to the agency’s interpretation of a statute it is tasked with implementing.
February 11, 2025 - PFAS and Microplastics Litigation: The Latest Front of ESG Lawsuits
A growing awareness of perfluoroalkyl and polyfluoroalkyl substances (PFAS) and the pervasiveness of microplastics have led to an uptick in litigation by private plaintiffs, nongovernmental organizations, and state attorneys general.
As the US Environmental Protection Agency (EPA) under Administrator Lee Zeldin lays out an ambitious regulatory agenda related to perfluoroalkyl and polyfluoroalkyl substances (PFAS), state lawmakers, state attorneys general, nongovernmental organizations, and plaintiffs’ lawyers continue to impact evolving compliance and liability risk.
The US Environmental Protection Agency (EPA) has proposed a new draft general stormwater permit that, once finalized, will impose potentially onerous new requirements on more than 4,000 properties in the Charles, Neponset, and Mystic River watersheds in Massachusetts. The permit will impact commercial, industrial, and institutional (CII) properties with one acre or more of impervious surface—including office parks, shopping malls, hospitals, and private colleges and universities—in over 60 communities in the Boston metropolitan area.
The US Environmental Protection Agency (EPA) issued a direct final rule on September 5 that will delay the beginning of the per- and polyfluoroalkyl substances (PFAS) reporting period under the Toxic Substances Control Act (TSCA) until July 11, 2025. The reporting period was previously set to begin on November 12, 2024. Most companies reporting PFAS data under the TSCA rule will now have until January 22, 2026 to meet their reporting obligations.
In this Law360 Expert Analysis, partner John McGahren and associate Debra Carfora discuss the release of the US Environmental Protection Agency’s final amendments to the procedural framework it uses to evaluate the health and environmental risks of chemical substances under the Toxic Substances Control Act.
The US Environmental Protection Agency (EPA) on May 3, 2024 released its final amendments to its Procedures for Chemical Risk Evaluation (or the Risk Evaluation Rule), the procedural framework for evaluating the health and environmental risks of chemical substances under the Toxic Substances Control Act (TSCA). The newly amended rule codifies certain policy considerations expanding the scope of risk evaluations, while leaving EPA broad discretion in how it interprets and implements the science.
The US Environmental Protection Agency (EPA) released on April 25, 2024 the prepublication versions of four final rules applicable to fossil fuel–fired power plants. The rules establish carbon dioxide standards for existing coal-fired power plants and new gas-fired power plants, limits for mercury emissions from lignite-fired power plants and emission of toxic metals from all coal-fired power plants, more stringent standards on wastewater discharged from coal-fired power plants, and requirements applicable to inactive coal ash impoundments at inactive facilities.
The US Environmental Protection Agency (EPA) on April 19 released the pre-publication version of the final rule (Rule) designating perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) as “hazardous substances” under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). This is the first time EPA has directly designated any substance as a hazardous substance under its CERCLA 102(a) authority.
On April 10, 2024, the US Environmental Protection Agency (EPA) finalized its highly anticipated new rule aimed at reducing the level of certain per- and polyfluoroalkyl substances (PFAS) in drinking water. The final rule is not only the first enforceable federal drinking water regulation for PFAS, but also the first National Primary Drinking Water Regulation under the Safe Drinking Water Act in decades.
The California Environmental Protection Agency (CalEPA) on April 5 set new public health goals for two per- and polyfluoroalkyl substances (PFAS) in drinking water, signaling the possibility of strict regulation by the state.
The US Environmental Protection Agency (EPA) published on February 8, 2024 two proposed rules addressing per- and polyfluoroalkyl substances (PFAS) under the Resource Conservation and Recovery Act (RCRA). The rules, if finalized as proposed, would add nine PFAS, their salts, and their structural isomers to the RCRA hazardous constituents list and amend the regulatory definition of “hazardous waste” to require corrective action for substances meeting the statutory definition of “hazardous waste,” with the likely effect of increasing the scope of corrective action at existing and new sites.
The US Environmental Protection Agency (EPA) published on January 26, 2024 a list of specific per- and polyfluoroalkyl substances (PFAS) that trigger reporting requirements under EPA’s recently promulgated Toxic Substances Control Act (TSCA) Section 8(a)(7) PFAS reporting rule. The list is intended to clarify the chemicals that EPA considers PFAS to help the regulated community identify which manufactured or imported PFAS chemicals and PFAS-containing articles are subject to the reporting requirements.
The US Environmental Protection Agency (EPA) recently lowered the recommended regional screening level (RSL) and regional removal management level (RML) for lead-contaminated soil in areas where children live and play from 400 parts per million (ppm) to 200 ppm. EPA recommends using an even lower RSL of 100 ppm in areas with other sources of lead exposure, including lead water service lines and lead-based paint, and areas identified as non-attainment areas for lead emissions under the Clean Air Act.
This report summarizes these and other major PFAS regulatory developments from 2023 and forecasts what 2024 may have in store.
Following several extensions to its statutory deadline, the US Environmental Protection Agency (EPA) released its final Toxic Substances Control Act (TSCA) Reporting and Recordkeeping Requirements for Per- and Polyfluoroalkyl Substances (PFAS) on September 28, 2023. While the final rules largely track the draft rules released in June 2021, they include changes to address concerns raised during the comment period about the rule’s potential breadth and associated compliance burdens and a slightly expanded definition of what PFAS are covered by the new rule.
Historically, the US Environmental Protection Agency (EPA) has generally declined to regulate manufactured goods or finished products―known as “articles”―under the Toxic Substances Control Act (TSCA). This long-standing practice seems to now be falling by the wayside, however, as EPA has begun affirmatively including articles in many new regulatory measures under TSCA. For companies that import, manufacture, process, or distribute finished goods for commercial sale, it is more critical than ever to know what chemicals are contained in those products.
While Earth was completing yet another trip around the sun, many developments occurred within the per- and polyfluoroalkyl substances (PFAS) space, including the pending Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and Safe Drinking Water Act regulations for perfluorooctanoic acid (PFOA), perfluorooctanesulfonic acid (PFOS), and certain other PFAS and the Toxic Substances Control Act (TSCA) 8(a) reporting rule in the United States, and a proposed PFAS ban in the European Union.
The Environmental Protection Agency’s (EPA’s) highly anticipated regulations governing per- and polyfluoroalkyl substances (PFAS) reporting, originally slated for final publication in January 2023, have been delayed to at least March. There have been concerns that the forthcoming rule may place an excessive burden on entities that are required to report, particularly from smaller businesses and others that may not have the infrastructure or resources to satisfy the reporting obligations.
The US Environmental Protection Agency (EPA) released on November 2 the final version of its fifth Contaminant Candidate List (CCL 5) that significantly expands the draft CCL’s definition of per- and polyfluoroalkyl substances (PFAS). The new definition, which EPA revised following a year-long public comment and review process, may implicate thousands of individual PFAS chemicals for future regulation under the Safe Drinking Water Act.
In the first designation of its kind, the US Environmental Protection Agency (EPA) released a pre-publication proposed rule on August 26, 2022, designating perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS), including their salts and structural isomers, as “hazardous substances” under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).
Partner Stephanie Feingold provided a mid-year update on select environmental policy developments we’ve seen so far in 2022.
In its latest action under its PFAS Roadmap, the US Environmental Protection Agency issued new and updated drinking water health advisories for four PFAS chemicals. These health advisories are an interim step in a larger process of regulation for PFAS at the federal level and arrive at a time of unprecedented state and federal regulatory and legislative action to address PFAS in the environment.
The Biden-Harris administration recently affirmed its commitment to advancing environmental justice, issuing a sweeping guidance document on May 26, 2022. At first glance, the guidance from the US Environmental Protection Agency (EPA) merely reviews longstanding statutes and executive orders for environmental justice–oriented authority. But a closer reading reveals a subtle shift in EPA’s decision-making.
The US Environmental Protection Agency announced on May 18 the addition of five per- and polyfluoroalkyl (PFAS) chemicals to its Regional Removal Management Levels and Regional Screening Levels. These additions signal the agency’s increasing efforts to investigate and address PFAS chemicals at sites of alleged contamination.
There have been a number of important recent developments, with more on the way, concerning emerging contaminants such as Per- and Polyfluoroalkyl Substances (PFAS) and 1,4-dioxane. It can be hard for companies to discern, respond to, and plan for the practical impact of these developments on their regulatory compliance, environmental cleanups, litigation, and day-to-day business operations.
In PLI Chronicle, partners Stephanie Feingold, Duke McCall, and Julie Palmer, along with associate Drew Jordan, provide an update on the steps taken at the federal level within the last six months to address per- and polyfluoroalkyl substances (PFAS), as well as their potential implications.
The updated model of the remedial design/remedial action consent decree and statement of work seeks to streamline and quicken CERCLA settlement negotiations and address environmental justice concerns of Superfund sites in impacted communities.
The California Environmental Protection Agency’s Office of Environmental Health Hazard Assessment (OEHHA) recently took steps pursuant to the Safe Drinking Water and Toxic Enforcement Act of 1986, better known as Proposition 65, to further regulate perfluorooctanoic acid (PFOA), perfluorooctane sulfonate (PFOS), and other perfluoroalkyl substances (PFAS).
With the arrival of a new US presidential administration, companies are anticipating potential shifts in enforcement priorities by the US Environmental Protection Agency (EPA) in the areas of climate change, the National Environmental Policy Act (NEPA), and emerging contaminants and chemical safety. In several areas, there is likely to be a rollback of the rollbacks of environmental rules implemented by the former administration, as well as an increased emphasis on environmental justice.
The EPA’s supplemental analysis includes certain consumer exposures, as well as surface/ambient water exposures, to 1,4-dioxane.
A new US presidential administration brings new priorities across various areas and industries, including regulation and enforcement of activities that affect the environment. With President-Elect Joe Biden expected to assume the presidency on January 20, 2021, there are a number of considerations for companies tracking potential changes to the law governing the use of chemicals and antimicrobials.
The US Supreme Court held in City and County of San Francisco v. EPA that the US Environmental Protection Agency lacks authority under the Clean Water Act to include “end-result” limitations in National Pollutant Discharge Elimination System (NPDES) permits. The Court reasoned that the CWA requires EPA to set a specific standard and instruct permittees on how to achieve that standard in NPDES permits. The Court’s decision renders unenforceable limitations in CWA permits conditioned on the quality of the receiving waters and again makes clear the Court will not defer to the agency’s interpretation of a statute it is tasked with implementing.
Republican lawmakers introduced on January 22, 2025 a Congressional Review Act (CRA) resolution to overturn a US Environmental Protection Agency rule limiting the use of trichloroethylene (TCE) under the Toxic Substances Control Act (TSCA). CRA resolution H.J. Res. 27 aims to nullify the EPA's final rule on TCE, which the resolution describes as posing a significant threat to companies, such as a battery separator manufacturer in one of the lawmaker’s districts.
Bans in California and New York on textile articles and apparel containing per- and polyfluoroalkyl substances (PFAS) will take effect January 1, 2025. That same day, Colorado will commence its phased approach to prohibit PFAS in outdoor apparel for severe wet conditions, starting with a PFAS disclosure requirement. While an increasing number of states contemplate legislation and regulations addressing PFAS in textile goods and apparel—whether that be product bans or reporting and disclosure requirements—the size of the California and New York markets will likely impact national strategies for these types of products.
California Governor Gavin Newsom signed into law two bills banning per- and polyfluoroalkyl substances (PFAS) in textiles and cosmetics on September 29, 2022, while simultaneously vetoing a bill that would have required manufacturers and certain other businesses to submit annual reports concerning the usage of PFAS in products sold or imported into the state. These new consumer regulations will have far-reaching implications for companies up and down the supply chain doing business in one of the world’s largest economies.
The Biden-Harris administration has set its sights on an ambitious environmental policy agenda, focusing on climate change and environmental justice as key initiatives, and intends to implement its agenda through an “all of government” approach. The all-of-government strategy, first deployed in the United Kingdom in the late 1990s, employs a coordinated, multi-department, multi-agency approach to address particularly complex problems.
The Biden-Harris administration announced its American Jobs Plan, a legislative framework laying out an ambitious $2 trillion investment in physical and human infrastructure, on March 31. The bulk of the proposed spending is directed to rebuild US infrastructure in the form of physical improvements on roads, bridges, airports, and ports, with additional investment and tax credits to support clean energy generation and storage, electric vehicles, and energy efficiency.
A growing awareness of perfluoroalkyl and polyfluoroalkyl substances (PFAS) and the pervasiveness of microplastics have led to an uptick in litigation by private plaintiffs, nongovernmental organizations, and state attorneys general. These lawsuits, which often challenge statements made about a product—for instance, statements that a product is “natural,” “environmentally-friendly,” or “healthy”—because they purportedly contain PFAS or microplastics, have moved beyond run-of-the-mill fraud or false-labeling cases to lawsuits falling squarely in the environmental, social, and governance (ESG) domain.
Reversing the US Court of Appeals for DC Circuit, a unanimous US Supreme Court held that Guam’s settlement of Clean Water Act liabilities did not give rise to and trigger the statute of limitations to bring a Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) contribution claim.
The US District Court for the Central District of California issued an opinion on December 10 in the decades-long fight between the US Environmental Protection Agency and several oil companies over payment of the United States’ costs incurred in remediating the McColl Superfund Site used for the manufacturing of aviation fuel during World War II. In United States of America v. Shell Oil Co., No. 91-00589, the court granted the United States’ motion for summary judgment and awarded the United States $49,861,337.62 in past cleanup costs.
Partners Stephanie Feingold and Matthew Thurlow were quoted in an InsideEPA article discussing the Environmental Protection Agency’s (EPA’s) ongoing efforts to improve air emissions data collection related to per- and polyfluoroalkyl substances (PFAS).
Partner John McGahren spoke with Bloomberg about a sprawling set of lawsuits against the US government related to drinking water contamination from per- or polyfluoroalkyl substances, known as PFAS, due to the use of aqueous film-forming foam (AFFF). The government is seeking to dismiss the suits by arguing that the use of AFFF qualifies for a “discretionary function exception” under the Federal Tort Claim Act.
Bloomberg Law quoted partner John McGahren in an article about the Environmental Protection Agency’s (EPA’s) recent designation of perfluorooctanoic acid (PFOA) and perfluorooctane sulfonic acid (PFOS) as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act. The article also examines the resulting delays in Superfund-site cleanup decisions, the agency’s evolving policies, and the challenges posed by limited waste management capacity for per- and polyfluoroalkyl substances (PFAS).
Partner Stephanie Feingold and associates Drew Cleary Jordan and Spenser Jaenichen co-authored a Law360 Expert Analysis on the US Environmental Protection Agency’s highly anticipated new rule aimed at reducing the level of certain perfluoroalkyl and polyfluoroalkyl substances (PFAS) in drinking water.
A Morgan Lewis LawFlash by partners Jeremy Esterkin, Stephanie Feingold, and associate Sarah Carter is cited by Inside TSCA in an article about the US Environmental Protection Agency’s (EPA’s) decision to push back regulations governing per- and polyfluoroalkyl substances (PFAS) reporting.
Partner Stephanie Feingold is quoted in a Chemical Watch article about expected state and federal regulations on per-and polyfluoroalkyl substances (PFAS). The regulations include plans by the US Environmental Protection Agency to designate two types of PFAS—perfluorooctanoic acid and perfluorooctanesulfonic acid—as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act; for Maine to promulgate a final PFAS disclosure rule; and for California to bar juvenile products containing PFAS.
Partner Stephanie Feingold commented in a Bloomberg Law article on the US Environmental Protection Agency’s (EPA’s) proposed rule, RIN: 2050-AH09, which calls for designating perfluorooctanoic acid (PFOA), perfluorooctane sulfonic acid (PFOS), and their salts and structural isomers as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).
Partner Stephanie Feingold commented in a Bloomberg Law article on the US Environmental Protection Agency’s (EPA’s) proposed rule designating perfluorooctanoic acid (PFOA), perfluorooctane sulfonate (PFOS), and their salts and structural isomers as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).
In a Bloomberg Law article covering the $1 billion in federal money being allocated to the Environmental Protection Agency’s (EPA’s) Superfund program, partner Duke McCall noted that the recent increase in Superfund backing is historic for the agency.
Partner Stephanie Feingold discussed the US Environmental Protection Agency's pending requirement that companies report their use of so-called “forever chemicals” in Law360.
Partner Duke McCall discussed a congressional plan to revive a decades-dormant tax on chemicals and possibly on crude oil with Law360.
The publication InsideEPA recently cited a LawFlash written by Morgan Lewis partners Duke McCall and Denise Fellers and associate Noorvik Minasian in an article regarding the US Environmental and Protection Agency’s (EPA’s) revamped model consent decree for Superfund enforcement agreements.
: Partner Stephanie Feingold spoke with Chemical Watch regarding the US House of Representatives’ approval of an expansive measure to address per- and polyfluoroalkyl substances (PFAS), seeking a pause on new compounds entering commerce, thorough toxicity testing, and more.
Partner Duke McCall examined the US Supreme Court’s unanimous ruling in Guam v. United States and its implications in this Expert Analysis for Law360.
Partner Duke McCall was quoted in a Bloomberg Law article following the US Supreme Court’s reversal of a lower court ruling that Guam was solely responsible for the cost of cleaning up the Ordot Dump. Duke told Bloomberg that the opinion could affect parties facing non-Superfund claims they thought were time-barred, which could potentially expose them to liability if those claims are revived.
In this article published by Bloomberg Law, Morgan Lewis partners Stephanie Feingold and Jeremy Esterkin and associates Drew Cleary Jordan and Sarah Carter discuss the key provisions of the PFAS Action Act, a bipartisan bill that directs the Environmental Protection Agency to enact multiple significant regulations related to per- and polyfluoroalkyl substances (PFAS).
Partner John McGahren spoke with Law360 for an article about what a Biden administration may mean for environmental policy.
Partner John McGahren spoke with Chemical Watch for an article about the challenges companies subject to the Toxic Substances Control Act (TSCA) chemical data reporting (CDR) requirements face ahead of the November 30 reporting deadline.