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 the CERCLA and RCRA, our guidance related to contaminated site cleanup efforts and the laws governing them covers the Toxic Substances Control Act (TSCA), the Clean Water Act (CWA), and their state counterparts.
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, Morgan Lewis has front-line insight into the efforts to control costs and improve efficiencies for regulated industries.
We counsel 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 sites 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.
The EPA recently updated its model remedial design/remedial action consent decree and statement of work to streamline and quicken CERCLA settlement negotiations and address environmental justice concerns of Superfund sites in impacted communities. View EPA Updates Model Remedial Design/Remedial Action Consent Decree and Statement of Work to learn more.
The environmental policy agenda of the Biden-Harris administration promises to reshape the investigation and remediation of contaminated sites. While the previous administration sought to revamp the Superfund program to increase the efficiency of site cleanups and speed up return to productive use, the new administration’s focus on environmental justice and climate change is expected to bring increased scrutiny in those areas while focusing on enhanced community involvement in remedial design and implementation.
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.
PLI's Environmental Regulation in Practice 2021: New Challenges and Priorities will analyze current and pending regulations in environmental law through the lenses of prevailing case law, current business models, and future considerations.
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.
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.
Morgan Lewis environmental counseling and litigation of counsel Laurie Matthews testified May 13 before the US House Subcommittee on Environment and Climate Change regarding implications for industry of the CLEAN Future Act, H.R. 1512.
The Biden administration has promised to significantly revise and reinvigorate the nation’s environmental justice policy.
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 administration has begun putting in place a broad and aggressive environmental agenda, not only at the Environmental Protection Agency (EPA) but across almost all executive branch agencies.
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.
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.
The US District Court for the Southern District of Texas issued its third opinion on August 19 in the decade-long fight between Exxon Mobil Corporation (ExxonMobil) and the US government over who is responsible for the costs incurred in remediating ExxonMobil’s Baytown and Baton Rouge refineries and nearby chemical facilities (the plants), which were used to produce aviation fuel and rubber during World War II and the Korean War under extensive government control.
Our litigation and environmental teams recently discussed the DC Circuit’s ruling that rejected a challenge to the EPA’s listing of a site on the Superfund National Priorities List (NPL).
Deferring to the US Environmental Protection Agency, the US Court of Appeals for the DC Circuit rejected a challenge to the first-ever listing of a site on the Superfund National Priorities List under recent regulatory revisions that allowing the agency to consider “subsurface intrusion.”
The US Supreme Court held that CERCLA does not preempt state law restoration claims by landowners who are potentially responsible parties, but clarifies that the Environmental Protection Agency must approve landowners’ restoration efforts.
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, of counsel Laurie Matthews, 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 and associate Meredith Auten 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).