North Carolina Lawmakers Work Fast in Wake of Supreme Court DecisionJuly 8, 2014
North Carolina's Governor signed in to law a measure that provides that North Carolina's statute of repose does not apply to lawsuits or claims regarding personal injury or property damage from groundwater contamination. The United States Supreme Court recently held that North Carolina's statute of repose barred a CERCLA claim against CTS Corp. for groundwater contamination. There was concern among North Carolina lawmakers that the Supreme Court's decision would bar military families from bringing actions for damages as the result of groundwater contamination at Camp Lejeune. Health officials estimate that more than 1 million people may have been exposed to tainted groundwater at Camp Lejeune.
US Supreme Court Finds North Caroline Law Preempts CERCLA’s Discovery RuleJune11, 2014
The United States Supreme Court ruled that CERCLA and its discovery rule, which provides that the statute of limitations for a CERCLA claim begins to run when a plaintiff discovers or should have discovered the contamination, does not preempt North Carolina’ statute of repose. North Carolina’s statute of repose provides that a tort suit cannot be brought against a defendant more than ten (10) years after the culpable act of the defendant. Justice Kennedy differentiated between statutes of limitations and statutes of repose and held that CERCLA does preempt state’s statutes of limitations. The Court found that unlike a statute of limitation, which provides encouragement for a plaintiff to bring a claim timely, the statute of repose “puts an outer limit on the right to bring the civil action” in the first place.
Unlike North Carolina’s very broad statute of repose, New Jersey’s and New York’s statutes are far more limited, thus this ruling will not affect CERCLA claims in these and many other states.
EPA Adopts the 2013 ASTM Standard – E1527-13 for All Appropriate Inquires For CERCLA Innocent Landowner Liability ProtectionsJanuary 7, 2014
As a follow-up to our post of August 22, 2013, the United States Environmental Protection Agency (“EPA”) has adopted a direct final rule amending the “all appropriate inquiries” (AAI) rule to take effect immediately. The new rule provides that the new ASTM International revised standards updating its 2005 Phase I assessment standard, known as ASTM E1527-13 will meet EPA’s AAI Rule. This new ASTM standard seeks to provide clarification and guidance for the assessment of commercial properties and whether or not there are recognized environmental conditions at the properties to assist professional and prospective purchasers.
Among many changes, ASTM E1527-13 updated definitions of the following:
(1) “recognized environmental condition”;
(2) “historical recognized environmental condition”;
(3) added a definition for “controlled recognized environmental condition” to the standard;
(4) added a clarification to the definition of “de minimis condition”;
(5) “migrate/migration” to include vapor intrusion migrations; and
(6) “release” to clarify that it has the same meaning as under the CERCLA statute.
The 2005 standards will likely be phased out as the standard that meets the minimum threshold of the AAI Rule because the updated guidance includes evaluating potential vapor intrusion impacts at the property, which was not included or mentioned in the ASTM 2005 standards.
Related Practice: Environmental & Land Use
CITGO Petroleum Corp. to pay $23.25 million to settle MTBE contamination claimsNovember 12, 2013
CITGO Petroleum Corporation has agreed to pay $23.25 million to New Jersey to settle methyl tertiary butyl ether (MTBE) contamination claims.
In June 2007, the New Jersey Department of Environmental Protection (NJDEP) filed suit against nearly 50 MTBE manufacturers, refiners and marketers alleging that they were responsible for contamination of state waters with the gasoline additive MTBE. The proposed Judicial Consent Order (New Jersey Dep’t of Envtl. Prot. v. Atlantic Richfield Co., S.D.N.Y., No. 08-CIV-00312, proposed consent order 10/21/13) would resolve CITGO’s alleged liability for damages, past cleanup and removal costs, and injunctive relief under the New Jersey Spill Act and the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). CITGO’s remediation obligations, if any, are not affected by this settlement.
A copy of the proposed Judicial Consent Order is available for inspection via the Internet at http://www.nj.gov/dep/srp/legal/ and at the Department’s Office of Record Access.
EPA Amends Rule for All Appropriate Inquiries StandardAugust 22, 2013
EPA amended the "All Appropriate Inquiry" rule on August 15, 2013 to confirm that complying with the new ASTM E1527-13, Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process for due diligence prior to purchasing property will meet the standard to establish innocent landowner liability protection under CERCLA. ASTM E1527-13 updates the 2005 standard to meet the "All Appropriate Inquiry" by a prospective purchaser of a potentially contaminated property for future liability protection.
ASTM Issues New Guidance to Comply with CERCLA Continuing ObligationsMarch 8, 2012
ASTM International, Inc. has released guidance ASTM E2790-11 to provide procedures to assist users to satisfy continuing obligations applicable to the innocent landowners, the contiguous property owner (CPO), and the bona fide prospective purchaser (BFPP) protections from CERCLA liability (collectively referred to as the "Landowner Liability Protections," or "LLP"). This guidance presumes that a valid phase l or another report that satisfies the "all appropriate inquiries" test has been conducted at the property.
This guidance is intended to cover properties where chemicals of concern are known to have been (1) released on the property prior to acquisition by the current property owner, (2) are present at the property after acquisition by the current property owner due to migration from neighboring property, or (3) are discovered after property transfer where the Phase l (or other "all appropriate inquiries" document) provided no reason to know of the presence of chemicals of concern prior to transfer.
The continuing obligations and requirements set forth in the Brownfields Amendments to CERCLA include: (1) complying with any land use restrictions established or relied upon in connection with a response action at a property; (2) not impeding the effectiveness or integrity of any institutional controls employed at a property in connection with a response actions; (3) taking reasonable steps with respect to releases of hazardous substances, including stopping continuing releases, preventing threatened future releases, and preventing or limiting human, environmental or natural resource exposure to prior releases of hazardous substances; (4) providing full cooperation, assistance and access to persons who are authorized to conduct response actions or natural resource restoration at a property; (5) complying with information requests and administrative subpoenas; and (6) providing legally required notices with respect to releases of any hazardous substances at a property. There are additional "continuing obligations" under CERCLA such as legally required notices, allowing access and coooperating with governmental regulators, which are not part of this guidance.
The ASTM Guidance sets forth the following steps for compliance:
(1) Review the Phase l to determine whether continuing obligations apply. If they do not, prepare a statement of no continuing obligations.
(2) If the property is subject to continuing obligations, a review and evaluation of the environmental conditions and the activity and use limitations at the property must be conducted.
(3) An evaluation must be made as to whether institutional controls, land use restrictions and/pr recognized environmental conditions exist at the property.
(4) If the answer to (3) is yes, then continuing obligations must be performed. The continuing obligations plan must be prepared and any initial continuing obligations executed.
(5) Perform continuing obligations.
NJDEP Issues Oversight Process Under SRRA For RCRA, CERCLA, and Federal Facility SitesApril 7, 2011
Pursuant to the Site Remediation Reform Act ("SRRA"), the New Jersey Department of Environmental Protection ("NJDEP") has a state to delineate which Resource Conservation and Recovery Act ("RCRA") sites, Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA") sites, and Federal Facilities will be handled by the NJDEP and the United States Environmental Protection Agency ("USEPA")and which sites will require remediation under the direction of an Licensed Site Remediation Professional ("LSRP")Program in New Jersey by May 7, 2012.
For RCRA GPRA 2020 universe sites:
An LSRP will not be required for all sites that are on the USEPA's RCRA Governmental Performance and Result Act ("GPRA") 2020 universe list (which can be found at http://www.epa.gov/epawaste/hazard/correctiveaction/pdfs/2020scc.pdf) where the USEPA is the lead agency. NJDEP will continue to issue comments, but USEPA will provide the lead role. These sites will not have to follow the NJDEP's mandatory and regulatory timeframes, nor will they be required to pay the annual remediation fee. Sites listed on the RCRA GPRA 2020 universe list where NJDEP is the lead agency will be required to retain an LSRP by May 7, 2012, but there will still be a NJDEP case manager who will provide all approvals. These sites will also be required to follow the NJDEP's regulatory and mandatory timeframes, pay NJDEP's oversight fees, but not the annual remediation fee.
For RCRA non-GPRA 2020 universe sites:
At all RCRA sites that are not on the USEPA's RCRA GPRA 2020 universe list, the responsible parties must hire an LSRP by May 7, 2012, after which NJDEP will no longer provide oversight. These sites will be subject to all mandatory and regulatory timeframes, the LSRP will issue a Remedial Action Outcome ("RAO"), and they will be subject to the annual remediation fee.
For CERCLA sites and Federal Facilities:
At all CERCLA sites where USEPA is the lead agency and at Federal Facilities under Federal agreement, an LSRP is not required. At CERCLA sites where NJDEP is the lead agency, the responsible party must retain an LSRP by May 7, 2012. At CERCLA sites and Federal Facilities, NJDEP will continue to provide oversight and the annual remediation fee will not be required. If the remediation at CERCLA sites is being conducted as part of a Federal agreement or order, those sites will not be subject to the mandatory and regulatory timeframes. An RAO will not be required for these sites, but any party seeking a seeking a Final Remediation Document for use as part of a real estate transaction after May 7, 2012 must obtain an RAO from an LSRP.
This policy statement from NJDEP provides clarity for those who have a site that would fall into any of these is categories.
EPA to Consider Addition of Vapor Intrusion to HRSThursday, February 10, 2011
The Environmental Protection Agency (EPA) is seeking public comments on whether vapor intrusion should be added as a component of the Hazard Ranking System ("HRS"). The HRS is the primary tool EPA uses to place contaminated sites on the CERCLA National Priorities List ("NPL"). This change would allow EPA to address human exposure to contaminants that enter building structures through the subsurface environment as part of the HRS. Vapor intrusion explains the process by which hazardous substances in the ground migrate to the subsurface and enter buildings as a gas or vapor. This intrusion can cause human exposure to the hazardous substances, particularly through cracks in basements, building foundations and sewer lines.
The Government Accountability Office (GAO) recommended that EPA consider including vapor intrusion to the HRS. GAO concluded that if vapor intrusion is not added and listed on the NPL, those sites may not be addressed.
By adding vapor intrusion to the HRS, EPA will be able to identify locations where people are exposed or potentially exposed in dwellings, workplaces, or other structures or enclosures.
EPA will conduct public listening sessions in Arlington, VA on February 11, 2011. There will also be listening sessions held in San Francisco and Albuquerque.
- Clean Air Act
- Clean Water Act
- Climate change
- Affordable Housing
- Due diligence
- Eminent Domain
- Floor hazard regulation
- Land Use
- Natural resource damages
- NJDEP Waiver Rule
- Site remediation
- Spill Act
- Toxic torts
- Vapor intrusion