EPA Publishes Proposed Site Remediation NESHAP Rule Amendments

The EPA recently published proposed rule amendments that would subject site remediation activities performed under the Comprehensive Response and Compensation Liability Act (“CERCLA”) and Resource Conservation and Recovery Act (“RCRA”) to National Emission Standards for Hazardous Air Pollutants (“NESHAP”). The EPA is also proposing to remove the applicability requirement that a remediation site must be co-located with a facility that is regulated by other NESHAPs in order to be subject to the site remediation rule.

The EPA predicts that 69 major source facilities performing remediation under CERCLA or RCRA may become subject to the Site Remediation Rule as a result of these proposed rule changes. According to the EPA, the types of facilities most likely to be affected by the rule changes include, but are not limited to, organic liquid storage terminals, petroleum refineries, chemical manufacturing facilities, government facilities such as military operations, and manufacturing facilities using organic materials.

The EPA is seeking comments on these potential changes by June 27, 2016.

I recently published an article with more detail on the proposed rule amendments and background on the current exemptions.

Taft Environmental Attorney Bilott to Speak at Troubled Waters Drinking Water Conference

Bilott.Robert_hiresRob Bilott will present at the Troubled Waters Drinking Water Conference in New York on May 23. The conference will focus on Perfluorooctanoic Acid (PFOA) and lead in drinking water. It will explore the history with perfluorinated chemicals (PFCs), federal and state responses to the PFOA contamination in Hoosick Falls, groundwater concerns in other jurisdictions, public health advisories, lead sampling in homes and schools, measures underway to address both PFCs and lead in drinking water (regulatory, legislative, litigation) and how residents can limit their exposure to both contaminants going forward.

Rob has been a frequent speaker on this topic and mentioned or quoted in numerous articles recently about the widely-publicized litigation against DuPont relating to PFOA/C8 contamination.

 

A Tale of Little Repose: Asbestos Claims and the Indiana Supreme Court

Injuries caused by asbestos may not manifest until many years after exposure. Given this long latency period, the Indiana Supreme Court and General Assembly have frequently grappled with how to appropriately ensure that asbestos plaintiffs get a day in court while also ensuring that manufacturers are not forced to defend stale claims. The ongoing dialogue between the court and legislature on this topic has charted a meandering course leaving litigants unsure of the value of their claims and defenses. Much to the chagrin of potential plaintiffs and defendants alike, limits on asbestos actions were invalidated, resurrected and then finally invalidated again in Myers v. Crouse-Hinds Div. of Cooper Indus., Inc.

There have been three reversals on the same point of law in less than 20 years by the Indiana Supreme Court, which normally is a model of stability. Although the court does not hesitate to change common law when the time is right, it does not usually chart the circular course it has taken with the asbestos statute of repose.  I recently published an article discussing these cases and the impact on asbestos claims going forward.

Bilott to Speak at CBA Event on DuPoint Litigation

On May 20, Taft environmental attorney Rob Bilott will give a presentation to the Cincinnati Bar Association’s Environmental Law Group about the widely-publicized litigation against DuPont relating to PFOA/C-8 contamination. He will speak about the issues surrounding PFOA/C-8 contamination from a scientific, regulatory and legal perspective, including how PFOA/C-8 contamination has spread throughout the world over the last 50 years.

We invite you to attend this presentation and register here.

Taft Forms Brownfield and Site Development Team

Taft has formed a team focused on brownfield and site development of property that has the presence or potential presence of environmental contamination. The group is dedicated to assisting individuals, businesses, real estate developers, municipalities and others with the acquisition, disposition and redevelopment of real property for reuse, revitalization or restoration.

The team represents many different types of clients involved with the acquisition, disposition and redevelopment of brownfield sites and provides solutions on how to address potential liability. Taft environmental attorney David Guevara serves as chair of the group.

Read the news release here.

Taft Environmental Attorney Gardner Publishes Article in the Indiana Lawyer

Gardner_Will_HiresTaft environmental attorney Will Gardner’s article “Judicial deference and the Clean Power Plan” was published in the Indiana Lawyer on March 9. The article discusses seminal administrative law cases during Justice Scalia’s career and the potential future of the Clean Power Plan.

Will is a frequent contributor to Taft’s Environmental Law Insight Blog and has significant experience in air quality law. His practice focuses on advising clients regarding their legal obligations under state and federal environmental laws, evaluating environmental liabilities in real estate and business transactions and working with environmental consultants and clients to manage remediation projects.

Oversight by IDEM May Establish NCP Compliance

A Dec. 4, 2015 ruling by the Northern District of Indiana represented two firsts by an Indiana court. In Valbruna Slater Steel Corp. v. Joslyn Manufacturing Co., the court granted summary judgment for a plaintiff who claimed that the costs it incurred for cleanup were both necessary and consistent with the national contingency plan (NCP). The ruling upheld that a state agency’s substantial oversight of the cleanup work established consistency with the NCP and that the plaintiff’s motivation for its cleanup efforts was irrelevant to whether its costs were necessary. The amount of damages recoverable by Valbruna will be established by further proceedings in which Valbruna must show that each expenditure it seeks to recover was related to a public-health threat posed by the site and was reasonable in light of the degree of that threat. I invite you to read an article that I recently published with more detail on this case and ruling.

Ohio Remains Undeveloped: The Gutting of Clean Ohio Brownfields Grants

A Columbus Dispatch article published on March 3 expressed concerns about the lack of grants for brownfields redevelopment in Ohio. Developers, manufacturers, retail establishments and other commercial entities have struggled over the last few years as the previously available grants for brownfields redevelopment under the Clean Ohio program were purportedly “shifted” to the Jobs Ohio program. Put simply, the shift did not work, and Ohio’s economy is bearing the burden. In fact, Jobs Ohio offers very little in the way of brownfields grants, especially for environmental cleanups.

Ohio needs to return to a robust grant system like that which formerly operated under the Clean Ohio Fund in order for Ohio to be in a competitive position with other states to attract and keep businesses that are prepared to restore environmentally distressed properties. I recently published an article on this issue with additional insight.

Taft Environmental Attorneys Burke and Dressman to Present at Sustainability & EHS Symposium

Taft environmental attorneys Kim Burke and Chase Dressman will co-present with Pilot Chemical Company at the 25th Annual Business & Industry’s Sustainability and Environmental Health & Safety Symposium on March 23. Their session is titled “Best Practices in Environmental Management…How to Keep Off EPA’s Enforcement Radar.” The event is sponsored by the Manufacturers’ Education Council and will be held at the Cincinnati Duke Energy Convention Center. We invite you to attend by registering here.

Deveau to Present at CERCLA Bona Fide Prospective Purchaser Defense Webinar

Taft environmental partner Frank Deveau will be a panelist for a Strafford live CLE webinar titled “CERCLA Bona Fide Prospective Purchaser Defense: Securing and Maintaining Liability Protection” on March 16. Frank will provide guidance to counsel for parties involved in the purchase of a contaminated site to secure and maintain the BFPP defense.

Frank is co-chair of Taft’s Environmental practice group and the co-author of The Bona Fide Prospective Purchaser Defense to CERCLA Liability (ABA Publishing 2013) and Environmental Liability and Insurance Recovery (ABA Publishing 2012).

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