On Monday, the U.S. Supreme Court unanimously held that a settlement of Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”)-specific liability is required to give rise to a contribution action under §113(f)(3)(B). This decision is the Court’s latest attempt to provide clarity to CERCLA by evaluating the United States’ often inscrutable interpretations of the statute that further its dual role as the enforcer of the statute and the largest potentially responsible party (“PRP”).

In this case, the U.S. argued, and the D.C. Circuit agreed, that a 2004 Clean Water Act (“CWA”) Consent Decree entered into by the U.S. and Guam triggered a CERCLA §113(f)(3)(B) contribution claim that was time-barred. Guam argued that the CWA Consent Decree did not trigger a §113(f)(3)(B) contribution claim and that, since the U.S. has sovereign immunity under the CWA, the U.S. was seeking to avoid any responsibility for the decades that the U.S. Navy dumped hazardous military waste into the Ordot Dump.

The Supreme Court disagreed with the U.S. and the D.C. Circuit, holding that a resolution of CERCLA-specific liability is required to trigger a contribution action under §113(f)(3)(B). The Supreme Court’s analysis focused “on the totality” of §113(f). The Supreme Court reasoned that §113(f) “does not exist in a vacuum,” but rather that contribution actions are predicated on “common liability” and the obvious place to look for that “common liability” is CERCLA itself.

Although a party may undertake remedial measures pursuant to other environmental statutes that resemble a CERCLA response action, the Supreme Court stated that relying on a functional overlap would stretch CERCLA beyond Congress’ language. Adopting the U.S.’s interpretation would result in uncertainty as to when a party has “resolved” its CERCLA liability in prior non-CERCLA settlement agreements. The Supreme Court instead adopted the “far simpler approach” of asking whether a settlement agreement expressly discharges CERCLA liability.

The Supreme Court did not address the second issue presented—whether a settlement that expressly disclaims any liability determination, and leaves the settling party exposed to future liability, triggers a contribution claim under CERCLA §113(f)(3)(B). Although this may be a remaining concern for parties that entered into older form CERCLA consent orders and consent decrees, the U.S. Department of Justice has since updated the model language to include a statement that CERCLA liability is resolved upon entering into the agreement.

Guam did not raise, and the Supreme Court did not address, whether a PRP that has resolved its CERCLA liability must bring a §113(f)(3)(B) contribution action or whether such a PRP may also bring a §107(a)(4)(B) cost recovery action. Until the day comes when the Supreme Court wades into this murky area of CERCLA, the best practice is to be mindful of the shorter statute of limitations for §113(f)(3)(B) contribution actions, and, if the situation warrants doing so, pursue both §107(a)(4)(B) and §113(f)(3)(B) claims.

The first 100 days of the Biden Administration saw a flurry of activities at the federal level seeking to address PFAS, a class of thousands of manmade chemicals notoriously known as Forever Chemicals because they don’t break down in the environment.

Studies continue to report adverse health effects associated with exposure to PFAS, even at extremely small concentrations.  Studies are also increasingly finding high rates of PFAS in our everyday environment including drinking water, consumer and household products, food packaging, and more.  However, the United States Environmental Protection Agency (EPA) has not yet established any enforceable drinking water or remediation standards for any PFAS chemical.  See the PFAS Practice Tip at the end of the article regarding regulatory actions at the state level.

As the body of evidence showing potential adverse health effects and the high prevalence of PFAS in the environment increases, so do the calls for federal regulation from environmental organizations, the public, and even Congress.  Click here and here for background information on PFAS chemicals, their prevalence and health effects.

Acting on PFAS was a steadfast part of President Biden’s environmental campaign promises.  Here are the highlights on actions taken during the first 100 days:

  • April 27, 2021. PFAS Memo issued by New EPA Administrator Michael Regan
    • Develop national primary drinking water standards
    • Collect new data on 29 types of PFAS chemicals
    • Solicit data on the presence and treatment of PFAS in wastewater discharges
    • Establish the EPA Council on PFAS (ECP)
      • Charged with implementing the 2019 EPA Action Plan, prepared by EPA career staff
      • Also charged with developing the “PFAS 2021-2025 – Safeguarding America’s Waters, Air and Land,” a strategy to deliver critical public health protections
      • Initial recommendations to be made within 100 days of establishment of ECP
  • April 13, 2021. PFAS Action Act of 2021, bipartisan bill introduced to the US House of Representatives
    • Drinking water standard for PFOA and PFOS within two years
    • Designate PFOA and PFOS as a “hazardous substances” within one year and determine if other PFAS should be designated within five years under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), known as Superfund
    • Require testing of PFAS for toxicity to human health under Toxic Substances Control Act (TSCA)
    • Designate PFOA and PFOS as “hazardous air pollutants” under the Clean Air Act within six months and determine if other PFAS should be designated within five years
    • Prohibit unsafe incineration of PFAS waste
    • Moratorium on introduction of new PFAS into commerce
    • Establish industrial discharge limits and provide $200M annually for wastewater treatment
  • April 8, 2021. Updated PFBS Toxicity Assessment released by EPA
    • Comparable to assessments under EPA’s Integrated Risk Information System (IRIS) and Provisional Peer-Reviewed Toxicity Value (PPRTV) Program
    • Animal studies show effects on the thyroid, reproductive organs and tissues, developing fetus, and kidney following oral exposure
    • Data are inadequate to evaluate cancer effects
    • Provides hazard identification, dose-response information, and toxicity values
    • Developed reference doses (RfDs), the estimated amount of a chemical a person can ingest daily over a lifetime (chronic RfD) or less (subchronic RfD) that is unlikely to lead to adverse health effects
    • PFBS suggested to be less toxic than PFOA and PFOS based on the RfD
    • This assessment is not a regulation; rather, it provides a critical part of the scientific foundation for risk assessment decision making.”
  • March 17, 2021. Advance Notice of Proposed Rulemaking (ANPRM) for Wastewater Discharges published by EPA under the Clean Water Act
    • Provides information collected by EPA to date under its PFAS Multi-Industry Study for review and comment
    • Poses questions to PFAS manufacturers and formulators, soliciting information about PFAS wastewater discharges
    • EPA intends to use information collected for potential future rulemaking under the Clean Water Act to establish effluent limitations guidelines, pre-treatment standards, and new source performance standards for the Organic Chemicals, Plastics and Synthetic Fibers (OCPSF) point source category
    • Open for comment until May 17
  • Ongoing. EPA continues its PFAS Multi-Industry Study on Wastewater Discharges
    • Goals of the study are to:
      • Identify industries and specific facilities producing and using PFAS compounds
      • Quantify amounts of PFAS being discharged
      • Identify PFAS control practices and treatment technologies
      • Document PFAS removal efficacy in wastewater
      • Estimate costs of PFAS treatment systems
    • Affected industries are:
      • OCPSF manufacturers
      • Pulp and paper manufacturers
      • Textiles and carpet manufacturers
      • Commercial airports
  • March 11, 2021. Revised proposal for the Fifth Unregulated Contaminant Monitoring Rule (UCMR 5) published by EPA
    • Every five years, EPA uses the UCMR to monitor for highest priority unregulated drinking water contaminants and collect occurrence data
    • Occurrence data is used by EPA as basis for future regulatory determinations
    • Revised an earlier version of the UCMR 5, most significantly, by adding 23 PFAS chemicals to the originally proposed six PFAS chemicals
    • Final rule expected to be published in December 2021
    • Proposes requirement that Public Water Systems collect “occurrence data” for total of 29 types of PFAS chemicals from 2023-2025
    • December 2019, EPA published a new validated method to test for additional PFAS in drinking water. Under EPA Method 533 and EPA Method 537.1, EPA can now measure 29 PFAS chemicals
  • February 22, 2021. Final, revised Regulatory Determination for PFOA and PFOS issued by EPA under the Safe Drinking Water Act (SDWA)
    • First step to begin the process of developing national primary drinking water standards
    • Process takes years under the SDWA prescribed process
      • EPA must propose the drinking water standard within 24 months
      • EPA must then promulgate the standard within 18 months after the proposal
    • Standards include the Maximum Contaminant Level Goal (MCLG), the non-enforceable level at which no known or anticipated adverse health effects occur, with an adequate margin of safety
    • Standards also include the Maximum Contaminant Level (MCL), the enforceable standard applicable to public water suppliers, as close to MCLG as is “feasible” using best available technology or other means available, taking costs into consideration

Many of these proposed actions could have far-reaching and significant implications for many industries and businesses, as well as corporate and real estate transactions.  Pressure for establishing enforceable standards continues to grow at the federal level, and, as noted below, many states continue to take more aggressive action in the absence of federal standards.  Stay tuned for more updates and guidance on the anticipated implications of ongoing PFAS regulatory and legislative activities.

PFAS Practice Tip:  More than 20 states are taking various actions to address PFAS impacts in their individual state, resulting in a patchwork of regulations and testing requirements.  Be sure to check if your state has imposed, or is considering imposing, PFAS requirements affecting operations or remediation obligations.

As discussed in one of our earlier blogs, back in  March 2020, the U.S. Environmental Protection Agency (EPA) issued its controversial Enforcement Policy outlining certain situations where EPA would not pursue enforcement actions for specific instances of noncompliance in response to the COVID-19 pandemic. Most of the suspended obligations related to routine monitoring and reporting; settlement agreement and consent decree reporting obligations and milestones; control and treatment compliance; and the transfer and disposal of hazardous waste.

As detailed in its June 29, 2020, Addendum, EPA’s Enforcement Policy is set to expire today, August 31, 2020, at 11:59 pm EST, meaning that regulated entities that were relying on EPA’s enforcement discretion are expected to resume complying with environmental laws and permits no later than September 1, 2020.

It should be noted that in the June 29, 2020, Addendum, EPA states that termination of its Enforcement Policy does not limit its ability to exercise enforcement discretion on a case-by-case basis, inferring that EPA will take COVID-19 related reasons for noncompliance into consideration when determining whether to apply its enforcement discretion.

Nevertheless, regulated entities should continue to make “every effort” to comply with all environmental laws, regulations, and timeframes and should be proactive in communicating early on with EPA and documenting any suspected noncompliance issues due to COVID-19, in order to best protect themselves against liability down the road.

 


As the law continues to evolve on these matters, please note that this article is current as of date and time of publication and may not reflect subsequent developments. The content and interpretation of the issues addressed herein is subject to change. Cole Schotz P.C. disclaims any and all liability with respect to actions taken or not taken based on any or all of the contents of this publication to the fullest extent permitted by law. This is for general informational purposes and does not constitute legal advice or create an attorney-client relationship. Do not act or refrain from acting upon the information contained in this publication without obtaining legal, financial and tax advice.  For further information, please do not hesitate to reach out to your firm contact or to any of the attorneys listed in this publication.

For employers, both those expecting to reopen and those who remained open during the COVID-19 pandemic, the Department of Labor’s Occupational Safety and Health Administration (“OSHA”) has several guidance documents regarding COVID-19 and workplace safety.  Irrespective of this guidance, employers must comply with OSHA’s safety and health standards and regulations or where applicable, an OSHA-approved state plan.  Further, under Section 5(a)(1) of the Occupational Safety and Health Act, the “General Duty Clause,” employees must be provided with a workplace free from recognized hazards likely to cause death or serious physical harm.

Earlier last month, OSHA issued the “Guidance on Preparing Workplaces for COVID-19”  that provides recommendations on basic steps to prevent spread and reduce employee risk to COVID-19.   Since then, OSHA issued individual guidance alerts on tips to keep workers and workforces safe in construction, manufacturing, package delivery, retail, and restaurant & beverage sectors.

Generally, tips include:

  • Practice sensible social distancing and maintain a distance of 6-feet, where possible.
  • Encourage workers to stay home if they are sick and to report any safety and health concerns.
  • Provide resources to wash hands or access to wash hands is limited, alcohol-based hand rubs containing at least 60 percent alcohol.
  • Allow masks to be worn over the nose and mouth.
  • Use Environmental Protection Agency-approved cleaning chemicals for protection against the coronavirus.
  • Routinely clean and disinfect surfaces, equipment, and frequently-touched items.
  • Train workers in and encourage use of proper hygiene practices, workplace controls, and respiratory etiquette (e.g., covering coughs and sneezes).

The individual guidance alerts provide ways to implement the protective measures for workforce activities, highlighted for specific industries.

For the construction and manufacturing industries, some examples from the alerts include:

  • Keep in-person meetings as short as possible, with the number of workers in attendance limited.
  • Discourage workers from using other workers’ tools and equipment. If must be shared, provide alcohol-based wipes and instruct workers, on how to properly clean tools before and after use.
  • Train workers on proper use and procedures for protective clothing and equipment, and continue to use normal job hazard protection measures.
  • Monitor public health communications about COVID-19 recommendations for the workplace and ensure workers have access to and understand that information.

For package delivery, some examples from the alert include:

  • Minimize driver-customer interactions by leaving deliveries in locations that do not require person-to-person exposures (e.g., doorsteps and loading docks).
  • Discourage workers from using other workers’ tools and equipment.

For retail workers, some examples from the alert include:

  • Mark 6-foot distances on the floor in checkout lines and open every other cash register.
  • Provide workers and customers with tissues and trash receptacles.
  • Use a drive-through window or curbside pick-up.

For restaurants & beverage vendors offering takeout or curbside pickup, some examples from the alert include:

  • Mark 6-foot distances on the floor in pickup lines
  • Encourage customers to pre-pay over the phone or online, avoid direct hand-off, reserve parking spots only for curbside pickup, and use signs to display service options and instructions for pickup (e.g., curbside or take-out), and hours of operation.

Where applicable and feasible, distance and barriers between workers can also be achieved through innovative approaches (e.g., repositioning workstations and using plexiglass shields), as well as flexible work hours (e.g., staggered shifts) and limiting the duration of work activities.

OSHA continues to publish guidance and enforcement memos during the COVID-19 pandemic.  On top of other key considerations businesses should keep in mind, employers should continue to be aware of their evolving and workplace-specific obligations under federal OSHA regulations or any other applicable state or local requirements.

 


As the law continues to evolve on these matters, please note that this article is current as of date and time of publication and may not reflect subsequent developments. The content and interpretation of the issues addressed herein is subject to change. Cole Schotz P.C. disclaims any and all liability with respect to actions taken or not taken based on any or all of the contents of this publication to the fullest extent permitted by law. This is for general informational purposes and does not constitute legal advice or create an attorney-client relationship. Do not act or refrain from acting upon the information contained in this publication without obtaining legal, financial and tax advice.  For further information, please do not hesitate to reach out to your firm contact or to any of the attorneys listed in this publication.

As an update to last week’s post concerning Regional Greenhouse Gas Initiative’s (RGGI) new Strategic Funding Plan, the New Jersey Department of Environmental Protection (NJDEP), in celebration of Earth Day, announced that they will be investing an additional $45 million into the electrification of New Jersey’s transportation sector.

The money will be used to reduce greenhouse gas emissions especially in those areas heavily impacted. The funds will be sourced from the national Volkswagen settlement and will be used as part of the Murphy Administration’s prioritization of initiatives that reduce greenhouse gas emissions and their associated health impacts in high-impact communities.

Roughly $37 million will be put towards projects that convert dilapidated diesel trucks, buses, port equipment, marine vessels, and trains to electric power, with the remaining monies being used for electric vehicle charging equipment throughout the State.

Industries are urged to apply for funding for projects as they relate to the above, if they meet the Eligible Mitigation Actions, by submitting a project proposal to the NJDEP before the of June 22, 2020.

Anastasia P. Bellisari, a paralegal in our Environmental Department, contributed to this article.


As the law continues to evolve on these matters, please note that this article is current as of date and time of publication and may not reflect subsequent developments. The content and interpretation of the issues addressed herein is subject to change. Cole Schotz P.C. disclaims any and all liability with respect to actions taken or not taken based on any or all of the contents of this publication to the fullest extent permitted by law. This is for general informational purposes and does not constitute legal advice or create an attorney-client relationship. Do not act or refrain from acting upon the information contained in this publication without obtaining legal, financial and tax advice.  For further information, please do not hesitate to reach out to your firm contact or to any of the attorneys listed in this publication.