The U.S. Supreme Court recently decided Atlantic Richfield v. Christian, a Superfund case involving landowners who sought to use state law claims to compel Atlantic Richfield, the successor by merger to a copper smelting company, to perform a more extensive cleanup than federal regulators had required under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). While formally remanding the landowners’ claims to state court for further evaluation because the claims require the federal EPA’s permission to meaningfully proceed, the decision emphasizes the EPA’s continued primacy in remedial decision making. The decision should give a measure of comfort to parties performing federally supervised cleanups. But parties still may be vulnerable to state court claims by landowners that convince the EPA that the remedies they request do not threaten overall cleanups.
Continue Reading Three Takeaways from Atlantic Richfield Supreme Court Decision Emphasizing EPA Primacy in Remedial Decision Making

Under a new rule effective on Monday, March 23, 2020, owners and operators of stationary sources are required to report qualifying accidental releases to the ambient air of hazardous substances to the federal Chemical Safety and Hazard Investigation Board (CSB). While many companies are currently consumed with handling operations and logistics related to the coronavirus pandemic, compliance will still be expected going forward. Importantly, however, the CSB’s preamble to the new rule expresses a one-year grace period from the effective date of the rule, during which it will refrain from referring reporting violations for enforcement absent a knowing failure to report.

Continue Reading Requirement to Report Accidental Releases to Chemical Safety Board Takes Effect

The U.S. Environmental Protection Agency (EPA) announced last week its latest step in the implementation of its Action Plan—a preliminary regulatory determination regarding two per- and polyfluoroalkyl substances (PFAS)—perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS). The Action Plan was issued in February 2019 and outlined the agency’s efforts to address PFAS contamination in groundwater. This latest step comes on the heels of the EPA’s November 2019 proposal to add PFAS to the list of chemicals for which facilities must report use under the Emergency Planning and Community Right to Know Act (EPCRA).

Continue Reading EPA Takes One Step Closer to Regulating PFAS in Drinking Water

The U.S. Environmental Protection Agency (EPA) announced the latest step in implementing its February 2019 “Action Plan” for regulating a group of synthetic chemicals called per- and polyflouroalkyl substances (PFAS) last week. While PFAS have long been used in a wide array of consumer and industrial products, they have recently become an emerging area of focus for environmental law and policy at both the state and federal level. The EPA’s latest Notice of Proposed Rulemaking (Notice) proposes adding PFAS to the list of chemicals for which facilities must report their annual manufacturing, processing, or use under the Emergency Planning and Community Right to Know Act (EPCRA).

Continue Reading EPA Announced Latest Step in PFAS Action Plan

Environmental non-governmental organizations (NGOs) are pursuing litigation against EPA to force companies that have never intentionally used asbestos in a product to file reports linking their products to asbestos. Manufacturing and chemical companies should keep an eye on Asbestos Disease Awareness Organization v. Wheeler – currently pending in California federal court – where the NGOs seek to dramatically increase companies’ obligations to disclose that their products contain asbestos – even where it is just present as an impurity.
Continue Reading District Court Decision on EPA Reporting Could Affect Asbestos Litigation

In a key decision earlier this month with potentially hefty ongoing implications for developers and property owners, the U.S. Court of Appeals for the Third Circuit held a chemical company liable for nearly $1 million in pre-acquisition cleanup costs. The case is Pennsylvania Department of Environmental Protection v. Trainer Custom Chemical, LLC and offers another clear illustration that property owners and developers may be liable for environmental response costs incurred before they acquired property.
Continue Reading Property Owners and Developers Beware: Third Circuit Holds Chemical Company Liable for Pre-Acquisition Cleanup Costs

Long-anticipated changes to California’s Proposition 65 warning requirements took effect on August 30, 2018, through amendments and new rules issued by the California Office of Environmental Health Hazard Assessment. Among other changes, the new rules now (1) require businesses to provide California consumers with product warnings at the time of purchase, including at the time of online purchases; and (2) change the text of the warnings that businesses may use to qualify for “safe harbor” protections. The new warning requirements apply only to products manufactured after August 30, 2018.
Continue Reading New California Prop 65 Warning Requirements: What Businesses Should Consider Now

The Toxic Substances Control Act (TSCA) often seems like the forgotten federal environmental statute in that it gets less attention in the press and judicial decisions than statutes like the Clean Air Act, Clean Water Act, or the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund).  That said, a judge on the Northern District of California issued a high-profile TSCA decision worthy of some discussion.
Continue Reading Federal Court Issues Key Decision on NGO Challenge to Use of Fluoride in Water

Following the one year anniversary of significant amendments to the Toxic Substance Control Act (TSCA), there has been a flurry of activity related to the Act—from new rules issued by the Environmental Protection Agency (EPA) to lawsuits filed across the country. Here are some of the major highlights:

Continue Reading Four Milestones Since the Birth of a Significantly Revised TSCA

For the past several months, Monsanto has been in court challenging California’s decision to add the chemical glyphosate—the active ingredient in its herbicide Roundup—to the Proposition 65 list. It recently faced a setback when the California Supreme Court rejected Monsanto’s request to stay a lower court’s decision to include glyphosate among the 960 chemicals on the list.  California’s Office of Environmental Health Hazard Assessment (OEHHA) wasted no time after the decision and added glyphosate to the list on July 7, 2017.
Continue Reading No Delay for Proposition 65 Listing of Glyphosate