Tagged: Remediation

A Landmark Step: EPA Designates PFOA and PFOS as Hazardous Substances Under CERCLA

The U.S. Environmental Protection Agency’s (EPA) announcement on April 19, 2024, of its final rule designating perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), marks a significant moment in environmental regulation of per- and polyfluoroalkyl substances (PFAS). At the same time, the EPA released a new PFAS Enforcement Discretion and Settlement Policy under CERCLA (“Enforcement Policy”). These two announcements have wide-ranging implications for Superfund cleanups, development projects, public health, and the scope of environmental liability under CERCLA. The Persistent Threat of “Forever Chemicals” PFOA and PFOS belong to the PFAS class, a large group of man-made chemicals known for their exceptional resistance to degradation. These chemicals have been widely used since the 1940s in countless industrial applications and consumer products. Their unique chemical structure makes them highly effective in repelling water, oil, and stains. However, this same property also makes them incredibly persistent in the environment, earning them the nickname “forever chemicals.” Over time, PFAS have infiltrated various environmental media, including soil, water, and air. Extensive research over the past few decades has linked PFAS exposure to a range of human health problems, including: Certain cancers, particularly testicular and kidney cancers Liver damage Increased cholesterol levels Thyroid issues Developmental problems in infants and children, including low birth...

Three Large Chemical Companies Agree to Historic PFAS Settlement

Three large American chemical companies, The Chemours Company, DuPont de Nemours, Inc., and Corteva, Inc., recently announced a massive $1.185 billion settlement deal over complaints about the emerging toxic chemicals of concern known as Per- and Polyfluoroalkyl Substances, or PFAS as they are more commonly referred to. PFAS are synthetic chemicals nicknamed “forever chemicals” because they are persistent and resistant to degradation. They have been used in a wide variety of everyday products and are found in detergents, non-stick pans, stain-resistant and waterproof fabrics, fragrances, drugs, disinfectants, pesticides, and fire-fighting foam. According to a joint statement issued by the three companies and a corresponding question and answer addendum, the $1.185 billion total will be distributed to a so-called “water district settlement fund.” The rate that each company will contribute is consistent with a January 2021 Memorandum of Understanding reached between the companies, in which Chemours agreed to a 50-50 split of qualified expenses with both DuPont and Corteva. Under the settlement, Chemours will pay half (approx. $592 million), and DuPont (approx. $400 million) and Corteva (approx. $193 million) will contribute the remaining 50 percent to the fund. As part of the settlement agreement, the three companies do not admit fault in the cases and deny the allegations. Once the settlement is finalized, which the parties...

Appellate Division Rejects Judicial Review Upon Assertion of Good-Cause Defenses to an NJDEP Spill Act Directive Prior to Imposition of Direct Oversight

On January 9, 2023, the New Jersey Appellate Division issued its decision in In re N.J. Dep’t of Envtl. Prot. Direct Oversight Determination, in which the court addressed whether good-cause defenses asserted by Solvay Specialty Polymers USA, LLC (“Solvay”) to a statewide directive had to be decided by a court before the New Jersey Department of Environmental Protection (NJDEP) could place it under direct supervision. Solvay has owned and operated a manufacturing plant along the Delaware River since 1990 (the “Site”). When Solvay was informed of sampling data establishing the presence of perfluorononanoic acid (PFNA) and perfluorooctanoic acid (PFOA), two specific per- and polyfluoroalkyl substances (PFAS), so-called “forever chemicals,” in the area near the Site, Solvay began investigating and remediating PFNA and PFOA that might be attributable to the Site. In September 2013, at the NJDEP’s request, Solvay entered into the NJDEP’s site remediation program and hired a licensed site remediation professional (LSRP) to oversee its remediation efforts. In March 2019, the NJDEP issued a Statewide PFAS Directive to Solvay and other entities, in which the NJDEP determined that Solvay is responsible for PFNA and PFOA contamination arising from the Site, which has contaminated the Site and surrounding areas, including the state’s natural resources. The Statewide PFAS Directive provided detailed steps to be taken by...

NJDEP Posts Guidance for Prospective Purchasers of Contaminated Sites to Obtain Adjustments to Direct Oversight Requirements

On September 9, 2022, the New Jersey Department of Environmental Protection (NJDEP) issued its Pre-Purchase Administrative Consent Order Guidance through the NJDEP’s Contaminated Site Remediation & Redevelopment Program. The guidance document explains how prospective purchasers of contaminated sites subject to Direct Oversight can obtain a Pre-Purchase Administrative Consent Order (ACO), allowing for adjustments to Direct Oversight requirements. Under the Site Remediation Reform Act, if the person responsible for conducting remediation of a contaminated site fails to complete the investigation and remediation within mandatory timeframes, the NJDEP automatically places the site into Direct Oversight. The Direct Oversight requirements are a more prescriptive remediation process for the person responsible for conducting remediation. Some of the Direct Oversight requirements include: NJDEP selection of the remedial action for the site; NJDEP approval of each document submitted by a licensed site remediation professional; establishment of a remediation funding source in the amount needed to complete remediation; performance of a remedial action feasibility study for NJDEP approval; and compliance with an NJDEP-approved public participation plan. Once a potential buyer of a site closes on a contaminated property subject to Direct Oversight, the potential buyer becomes a person “in any way responsible” for remediating the site pursuant to the Spill Compensation and Control Act (“Spill Act”). By entering into a Pre-Purchase ACO,...

No, That Doesn’t Settle It: U.S. Supreme Court Clarifies Which Types of Settlements Trigger CERCLA Contribution Rights

The complex and overlapping nature of the three different routes to recovering cleanup costs under the federal Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) has bedeviled courts for decades. This month, in Territory of Guam v. United States, the U.S. Supreme Court answered one very narrow question: What kind of a settlement with the government gives a settling party the right to bring an action for contribution against a non-settlor?

NJDEP Amends Site Remediation Standards

Via a New Jersey Register notice published on May 17, 2021, the New Jersey Department of Environmental Protection (NJDEP) has amended the remediation standards that govern all cleanups in the state. It is the most sweeping revision of the standards since they were first adopted in 2008. NJDEP proposed the amendments in April 2020 and held a virtual public hearing on July 21, 2020. During an extended public comment period, NJDEP received more than 270 public comments on its proposal. The proposal itself was preceded by a series of stakeholder sessions stretching back to 2014. The rulemaking makes significant changes to the remediation standards, including: The creation of separate residential and non-residential soil remediation standards for the ingestion-dermal and inhalation exposure pathways; formerly, the applicable standard was the more stringent of the two, but now both pathways will need to be considered. The adoption of new soil remediation standards for the migration to groundwater exposure pathway, replacing the former site-specific approach based on NJDEP guidance with enforceable standards. The adoption of new standards for soil leachate (for the migration to groundwater exposure pathway) and indoor air (for the vapor intrusion exposure pathway); the vapor intrusion standards replace the former screening levels based on NJDEP guidance. The tightening of some standards and the loosening of others....

USEPA Creates PFAS Council

Per- and Polyfluoroalkyl Substances (PFAS) are synthetic chemicals nicknamed “forever chemicals” because they are persistent and resistant to degradation. They have been used in a wide variety of everyday products and are found in detergents, non-stick pans, stain-resistant and waterproof fabrics, fragrances, drugs, disinfectants, pesticides, and fire-fighting foam. PFAS comprise more than 4,700 compounds. Many of them have been identified as potential environmental or public health risks.

Sez Who? Appellate Division Questions Expert’s Qualifications to Testify in Spill Act Case

New Jersey’s Spill Compensation and Control Act (“Spill Act”) makes dischargers of hazardous substances, as well as persons “in any way responsible” for the discharged hazardous substances, liable in contribution to a person who remediates the discharge. Since the statute’s enactment in 1976, courts have often been called on to define limits on the category of parties who can be held responsible, especially the vague sub-category of persons “in any way responsible.” In its recent unpublished decision in Dorrell v. Woodruff Energy, Inc., the Appellate Division held that a supplier could not be held liable as a person “in any way responsible” simply for delivering fuel to the site in question. Reviewing the evidence presented in the trial court about another defendant’s potential liability, the court provided important guidance for both plaintiffs and defendants on the appropriate role of expert witnesses in Spill Act cases. The plaintiff, Sandra Dorrell, owned a store in Alloway Township. When she sought to sell the property, she discovered petroleum contamination in the soil and groundwater. She filed suit in 2011 to seek contribution from the parties she considered responsible for the contamination: Woodruff Energy, Inc. (“Woodruff”), Gulf Oil Limited Partnership (“Gulf”), and Chevron U.S.A. Inc. (“Chevron”), Gulf’s successor. The case had been to the Appellate Division once already, resulting...

NJDEP Extends Some Deadlines for Remediation Activities

In light of the disruptions created by the COVID-19 pandemic, the New Jersey Department of Environmental Protection (NJDEP) has again extended certain deadlines (or, in the language of the relevant statutes and regulations, timeframes) for the completion of various remediation activities at contaminated sites. On February 1, 2021, NJDEP issued a Notice of Rule Waiver/Modification/Suspension pursuant to Executive Order No. 103, which was issued on March 9, 2020. It follows similar notices issued on April 24, 2020 and August 17, 2020. The new notice extends some regulatory and mandatory timeframes reached during the effective period of Executive Order 103 for a total of 455 days (including the prior 270-day extensions), with corresponding extensions of subsequent timeframes. For remediations subject to the statutory timeframes in N.J.S.A. 58:10C-27 and -27.1, requiring completion of the remedial investigation by May 7, 2014 or May 7, 2016, it extends the timeframe for completing the remedial action from May 6, 2021 to May 6, 2022. Parties seeking to benefit from the extensions must have retained a licensed site remediation professional (LSRP). While surely not among the most significant effects of the pandemic, these changes in remediation timeframes are among the hardest to follow. Parties conducting (or even simply monitoring) remediation projects, their counsel, and their LSRPs would do well to keep...