Because of their widespread environmental presence, persistence and bioaccumulation, the group of substances known as PFAS have been described as a “Perfect Storm” of liability. The number of plaintiff’s suits concerning PFAS have spiked in the last few years. Also, EPA faces increasing bipartisan calls from Congress to adopt new drinking water standards and cleanup levels. In the interim, states are filling the void. In October 2017, the New Jersey Department of Environmental Protection announced a maximum contaminant level (MCL) of 14 parts per trillion for PFOA. Some NGO’s have called for levels as low as 1 part per trillion. Continue Reading PFAS – Let’s Let the Science Catch Up
In May, EPA issued its 2016 Final Effluent Guidelines (ELG) Program Plan, which is EPA’s first screening step to selection of industries for possible revision or development of technology-based limits on wastewater discharges (i.e., effluent limitations guidelines and standards (ELGs)). 83 Fed. Reg. 19281 (May 2, 2018). EPA releases a new ELG plan every two years, and the process bears watching because it cuts across all industry types (there are 59 industries with final ELGs in place) and provides some perspective on EPA’s assessment of pollutants of concern and emerging technologies to address those pollutants. Continue Reading EPA’s Effluent Guidelines Program Plan: Roadmap to Technology-Based Water Regulation
As explained in an earlier post, PFAS (per- and polyfluoroalkyl substances) are highly fluorinated manmade compounds that are reported to have a variety of adverse health effects. PFAS are resistant to heat, water and oil. These properties have led to use of PFAS compounds in a wide-range of products designed to be waterproof, stain‑resistant or non‑stick, such as carpets, furniture, cookware, clothing and food packaging. They are also used in fire retardant foam at airfields and industrial processes involving flammable and combustible liquids. PFAS compounds are resistant to chemical breakdown. This property, combined with their extensive use, explain why PFAS compounds are being found in drinking water supplies throughout the country. Continue Reading California Ramps Up Regulation of PFAS Compounds
New chemicals of concern, new scientific and technical developments, newly discovered wastes, or natural disasters can add up to new CERCLA liabilities. When the Comprehensive Environmental Response Compensation and Liability Act (“CERCLA”) was passed in 1980, it did not address the finality of judgments and settlements for the cleanup of contaminated sites. Some early settlements with EPA provided a complete release from all future CERCLA liability, but that later changed when the United States Environmental Protection Agency (“EPA”) began to limit the scope of covenants not to sue to specified “matters covered” by the settlement. The 1986 CERCLA amendments in section 122(f)(6), 42 U.S.C. § 9622(f)(6)(1) permanently made the change to require “reopeners” in all but a few limited circumstances. Continue Reading Reopened CERCLA Liability: New Causes for Concern?