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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 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.
ALWAYS IN THE KNOW
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.
View Emerging Contaminants—The Road Ahead and Major Federal Environmental Cases—What Lies Ahead to learn more.
Regulatory Developments
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 Proposed 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.
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.
This webinar will provide an overview of regulation and litigation involving emerging contaminants—specifically, PFAS and 1,4-dioxane.
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).
This CLE webinar advises environmental attorneys on the statutory analysis outlined in the Ninth Circuit's decision in Nanouk v. U.S. Litigation partner Denise Fellers and associate Noorvik Minasian serve on a panel that discusses the Federal Tort Claims Act (FTCA), the limitations of sovereign immunity, and the requirements to prove monetary damages.
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.
Our panel will discuss potential shifts in enforcement priorities by the US Environmental Protection Agency (EPA) in such areas as climate change, the National Environmental Policy Act (NEPA), and emerging contaminants and chemical safety.
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.
PLI’s Environmental Regulation in Practice 2020: Permitting, Litigating, and Deal Negotiations will address the critical issues of 2020 including conflicts between state initiatives and federal preemption laws, challenges for delivering renewable energy, and new permitting requirements, among other pressing topics. Expert faculty will analyze current and pending regulations through the lenses of prevailing case law and current deal considerations.
Litigation partner John McGahren will present on a webinar panel for “PFAS and Redevelopment in Corrective Action.”
The US Environmental Protection Agency (EPA) took another step on June 22 in advancing its Per- and Polyfluoroalkyl Substances (PFAS) Action Plan by finalizing a Significant New Use Rule (SNUR) for long-chain perfluoroalkyl carboxylate (LCPFAC) and perfluoroalkyl sulfonate chemical substances (Final PFAS SNUR or Rule), while dropping certain “safe harbor” provisions.
As part of the EPA’s recent efforts to advance its Per- and Polyfluoroalkyl Substances (PFAS) Action Plan (PFAS Action Plan), the EPA announced on February 20 its preliminary determination to regulate perfluoroctanesulfonic acid (PFOS) and perfluorooctanoic acid (PFOA) in drinking water. Following review of the comments submitted by the June 10 deadline, EPA will make a final determination whether to regulate PFOA and PFOS under the Safe Drinking Water Act (SWDA). Meanwhile, many states continue to move ahead with issuing their own regulations governing PFAS.
The US Environmental Protection Agency (EPA) has released additional interim guidance for field work decisions at cleanup sites under EPA authority, emphasizing its commitment to ensuring the health and safety of the public, its staff, and others performing work at the sites. In its guidance, the EPA provides principles to consider when evaluating whether to proceed with or pause field work related to Superfund (CERCLA) cleanups, Resource Conservation and Recovery Act (RCRA) corrective actions, Toxic Substance and Control Act PCB cleanups, Oil Pollution Act spill responses, and Underground Storage Tank Program actions.
As the coronavirus (COVID-19) pandemic continues, state government agencies are increasingly responding with closures and cancellations. In Pennsylvania, the Department of Environmental Protection recently cancelled seven highly anticipated public hearings.
The US Environmental Protection Agency announced a temporary policy regarding its enforcement of certain environmental legal obligations in an effort to protect workers and the public from exposure to the coronavirus (COVID-19).
California's Department of Toxic Substances Control recently proposed to add carpets and rugs containing perfluoroalkyl or polyfluoroalkyl substances (PFAS) as a Priority Product under the state’s Safer Consumer Products program.
The rapidly evolving coronavirus (COVID-19) crisis has given rise to several immediate impacts to ongoing cleanups of contaminated sites under state and federal environmental laws.
Litigation associate, Denise Fellers, is a faculty member for a program on the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), commonly known as Superfund. This program is part of the ABA's Section of Environment, Energy, and Resources (SEER) Essentials series. It will take place on Wednesday, February 20th, 9-10 AM PT.
Denise Fellers, presenter
Legislative Developments
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.
Litigation Developments
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.
Primary Source Documents
In the Media
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, 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).
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.
Morgan Lewis partner John McGahren spoke with Law360 for an article about the most significant rulings regarding environmental law in 2020 thus far.
Morgan Lewis partner Stephanie Feingold spoke with Bloomberg Law about the potential of the US Environmental Protection Agency setting enforceable limits for PFOA and PFOS chemicals.
Morgan Lewis partner John McGahren spoke to Law360 regarding the US Supreme Court’s ruling that federal Superfund law does not preclude individuals from filing state law claims for further cleanup of contaminated sites.
Morgan Lewis partner Stephanie Feingold spoke with Bloomberg Law about the US Environmental Protection Agency’s (EPA) decision to reduce or suspend some Superfund site cleanup work in response to the coronavirus (COVID-19) pandemic.
Morgan Lewis partner John McGahren and associate Justin Rand authored a Bloomberg Law article on a major CERCLA case before the US Supreme Court.