The U.S. Supreme Court has recently declined to consider a case centering on the question of when a citizens' group may challenge an ongoing environmental remediation under the federal Superfund law. The Court's decision lets stand a May 2014 ruling by the Seventh Circuit that chipped away at Superfund's general prohibition on legal challenges to ongoing removal or remedial actions.
Despite - even because of - their useful properties, perfluorinated chemicals ("PFCs") are increasingly thought to be dangerous for the environment, and potentially humans. PFCs are manmade substances with the ability to repel both water and oils, and are responsible for the stain repellant properties of your rug, the sauce-resistant properties of your takeout container, and the nonstick properties of your frying pan.
As most folks in the commercial real estate industry know, the Bona Fide Prospective Purchaser exemption from liability under the federal Superfund law is a very useful tool. Accordingly, a Phase I Environmental Site Assessment is standard practice for nearly every purchase of commercial real estate because it helps to satisfy EPA's "All Appropriate Inquiries" requirement for obtaining BFPP status and avoiding the often harsh liability associated with Superfund.
Fixed contaminant standards need not be reached, much less exceeded, in order to cause an injury that courts can recognize. An intermediate appeals court in New York has ruled that the Suffolk County Water Authority may sue chemical companies for groundwater contamination even where the contamination does not exceed an EPA drinking water standard known as a Maximum Contaminant Level. However, this may be a pyrrhic victory, as that same court also ruled that many of the SCWA's claims were too late under New York's three-year statute of limitations for injuries from latent effects of exposure to harmful substances.
Can a party who is not the holder of a certain environmental permit be required to perform the obligations set out in that permit? The New York State Department of Environmental Conservation thought so, and argued as much in the case of a property owner who had purchased land where a hazardous waste storage facility had operated years earlier. The purchaser, Thompson Corners, LLC, had never held a permit to operate the facility, which had closed years before the purchase, and was never required to obtain one.
Here's a pop quiz: after an eleven week trial in federal court, a jury hands down a verdict of nearly $105 million against ExxonMobil for contaminating New York City's drinking water. On appeal, the verdict is upheld. What environmental law enabled the jury to find, and the appellate court to affirm, such a large verdict? The Superfund Law? The Clean Water Act? The Resource Conservation and Recovery Act?
The health threats posed by physical contact with contaminated soil or groundwater are well known. But increasingly, state and federal regulators are recognizing that harmful vapors from such contamination can be drawn into nearby buildings and pose a threat to the occupants. Known as soil vapor intrusion, this threat can come from undiscovered contamination beneath a building, or even from the remnants of previously remediated soil or groundwater.
Many insurance policies contain a "pollution exclusion" which seeks to exclude coverage for losses arising from pollution, except in the case of a "sudden and accidental" release. "Sudden and accidental" may bring to mind a burst pipe or overturned tanker truck, but a recent decision in the United States District Court for the Southern District of New York suggests that the interpretation can be much more complicated.
EPA has just extended to tenants the Bona Fide Prospective Purchaser ("BFPP") protection, by which Congress previously exempted certain prospective owners from harsh Superfund liability. Even where the landlord loses its BFPP protection, the new EPA enforcement guidance memo allows tenants to hold onto it, assuming the tenant can meet certain requirements.
How do you clean up something as big and messy as the Gowanus Canal? On January 23-24, 2013, the United States Environmental Protection Agency will explain and defend its December 27, 2012, "Proposed Plan" for remediating the Gowanus Canal Superfund Site in Brooklyn, NY. The Proposed Plan formally identifies EPA's "preferred remedy" for the pollution in the Gowanus Canal-a technical term which actually describes a range of actions plans to take to clean up the canal-and explains its choices. The Plan resulted from the investigation it has conducted to date, including the Remedial Investigation and Feasibility Study is released in 2011.