Category: Environmental and Toxic Tort Advisor - Page 2

Aqueous film-forming foam (“AFFF”) is a hot topic in per- and polyfluorinated Substances (“PFAS”) litigation. AFFF is used to fight gasoline, oil, and jet fuel fires by producing an aqueous film that spreads across a fire’s surface to extinguish the flames and stop hot fuel from reigniting. It is used in locations where a flammable liquid hazard exists such as chemical plants, storage and processing facilities, oil tankers, offshore platforms and refineries, fire departments and training centers, bulk fuel storage farms, airports, and military facilities.

While effective, AFFF and PFAS are dangerous materials that do not dilute, degrade, or disappear, earning them the nickname “forever chemicals.” They are persistent in the environment and human body and are linked to many health issues including low infant birth weight, liver, kidney, immunological, reproductive and developmental complications, cancer, and thyroid hormone disruption. AFFF poses a risk to those with direct contact (i.e. firefighters) and communities near where firefighting foam is used.

In response to the alleged health risks associated with firefighting foam, there has been a rise in litigation related to AFFF exposure. In December 2022, 100 new cases were added to the AFFF MDL, bringing the total number of cases to 3,399. Plaintiffs include firefighters, military, and airport personnel exposed to AFFF and citizens not associated with professions that regularly interact with AFFF foam but who may be exposed via seepage into water sources.

As this litigation picks up, it is important to note that while the health effects of PFOS, PFOA, PFHxS, and PFNA are more widely studied than other PFAS, including AFFF, a new study published on January 10, 2023 in the Journal of Occupational Medicine found that Scottish firefighters were almost three times as likely to die of malignant neoplasms than the general population. The study also found excess mortality in firefighters for several site-specific cancers including kidney, bladder, esophagus, prostate, and myeloid leukemia, and mortality from neoplasms of unknown behavior over six times greater in firefighters than in the general population. Scottish firefighters also had a higher mortality rate for acute ischemic heart diseases, stroke, interstitial pulmonary diseases, renal failure, and musculoskeletal system diseases. The study linked these increases to exposure to fire effluents through inhalation, ingestion, or dermal absorption and noted a significant impact of chronic low-dose exposures to harmful chemicals for firefighters.

On December 20, 2018, the first bellwether AFFF trial, City of Stuart v. 3M Co. et als no. 2:2018cv03487, was filed in the US District Court for the District of South Carolina. Plaintiff alleges that several major companies manufactured fire suppressant foam and contaminated its drinking water for decades with no warning to Stuart residents and workers. The Complaint claims that the defendant companies knew harmful chemicals existed in their products but delayed notifying the public of such harms.

Birmingham, Alabama, joined this MDL on March 2, 2021, via Birmingham Water Works Board v. 3M Co. et al., case number 2:22-cv-04298, alleging that more than 600,000 customers were exposed to forever chemicals due to environmental seepage of firefighting foam based on testing performed in 2019 and 2022. These tests revealed PFOA and PFOS levels far exceeding the US EPA’s health advisory levels of 0.004 parts per trillion for PFOA and 0.02 parts per trillion for PFOS, with PFOA found at levels of up to 2 parts per trillion in the Black Warrior River and up to 3.3 parts per trillion in the Cahaba river and PFOS levels of up to 3.9 parts per trillion and 4.4 parts per trillion in those rivers, respectively.

Residents from Guin, Alabama, also filed another case (Fleming et al. v. 3M Co. et al., case number 2:22-cv-04541) that is currently part of this MDL. Plaintiff recently filed a motion to remand to the Northern District of Alabama, arguing their case is not appropriate for consolidation as they are not making allegations regarding AFFF but focusing on PFAS contamination of the local water by 3M. 3M opposed, arguing that there are issues related to AFFF alleged by the Guin plaintiffs.

Due to the lack of scientific evidence linking AFFF to water contamination and health damages, defendants (3M, du Pont de Nemours and Company, The Chemours Company, and The Chemours Company FC, LLC, Clariant Corporation, Dynax, BASF, Buckeye Fire Equipment Company, Chemguard, Inc., Kidde-Fenwal, Inc., National Foam, Inc., and Tyco) have filed summary judgment motions in the MDL arguing the plaintiff’s expert witness fails to specifically name any of their products as contamination sources and thus cannot prove that their products were a source of the PFOA detected in the City of Stuart’s water supply or were a substantial contributing factor of the PFOA. The Motions were filed in December 2022, and this matter is currently set for trial in the early spring of 2023.

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Our environmental law and toxic tort attorneys will provide you with news, legal updates, and commentary on environmental and toxic tort liability issues. We hope you find our content informative and helpful as you deal with the ever-changing challenges toxic tort and environmental matters pose to your organization. To receive updates directly to your inbox, click here.

Disclaimer: The information contained in this publication should not be considered legal advice, is not a substitute for legal counsel, and should not be relied on as such. In some jurisdictions, this is considered advertising. For legal advice or answers to specific questions, please contact one of our attorneys.

On December 15, 2022, EPA issued a final rule amending the All Appropriate Inquiries Rule (AAI Rule), 40 CFR part 312, to recognize the updated ASTM International standard for conducting Phase I environmental site assessments (ESAs), ASTM E1527-21, “Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process.” As part of the final rule, EPA is sunsetting its acceptance of the prior Standard Practice known as ASTM E1527-13 one year after the new standard’s effective date, or February 13, 2024. The final rule becomes effective on February 13, 2023.

The final rule comes after consideration of how to incorporate ASTM E1527-21 for most of 2022. On March 14, 2022, EPA published a direct final rule, 87 FR 14174, to establish ASTM E1527-21 as compliant with the AAI Rule. However, as many will recall, EPA received adverse comments and withdrew the direct final rule on May 2, 2022. The final rule is mostly similar to the March 14, 2022, direct final rule in that it adopts ASTM E1527-21 as the new standard for compliance with the AAI Rule, but to avoid some of the confusion commentators highlighted by sunsetting the prior standard.

The most significant takeaway from the issuance of the final rule, as noted above, is that it now allows for the use of ASTM International E1527-21 to satisfy the requirements for conducting all appropriate inquiries under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA).

As has long been the case, All Appropriate Inquiries under CERCLA are investigations into the previous ownership, uses, and possible environmental concerns of a property conducted “in accordance with generally accepted good commercial and customary standards and practices,” as outlined by CERCLA. All Appropriate Inquiries are important because they are critical to certain CERCLA liability defenses for purchasers of property and others with an ownership interest such as: the bona fide prospective purchaser, innocent landowner, and contiguous property owner defenses. A landowner asserting these defenses has the burden of proof to show that it conducted AAI before acquiring the property.

In conclusion, the key takeaways from the final rule becoming effective for purchasers and lenders are:

Effective February 13, 2023, parties may rely on ASTM E1527-21 to satisfy All Appropriate Inquiries under the CERCLA.
Prospective purchasers of forestland or rural property may rely on either E1527-21 or the existing ASTM E2247-16 (as is current practice), to show All Appropriate Inquiries into those properties.
EPA is phasing out its acceptance of the prior version of the standard, ASTM E1527-13, which will no longer be acceptable for All Appropriate Inquiries purposes as of February 13, 2024.

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PFAS, also known as Per-and poly-fluoroalkyl substances can be found in numerous industrial products. In South Carolina, United States District Court Judge Gergel presides over the PFAS multidistrict litigation (MDL). The MDL is made up of thousands of cases brought by individual plaintiffs, state governments, and local municipalities. The issues focus on the manufacturing or use of aqueous film-forming foam (AFFF), and the alleged release of two types of PFAS into the environment, PFOS and PFOA.

In September of 2022, Judge Gergel denied Defendant 3M Company’s along with other AFFF Defendants’ motions for partial summary judgment, based on the government contractor immunity defense. Under this defense, a government contractor can assert immunity for an allegedly defective product if the following three prongs are met: (i) the government approved reasonably precise specifications for the product; (ii) the product conformed to those specifications; and (iii) the contractor warned the government about the dangers of the product that were known to the contractor but not to the government. Courts also use what is known as the “continuous use” doctrine which allows contractors to satisfy this defense. The Court’s ruling was a significant development in PFAS litigation and could have insurance coverage implications.

In the late 1960’s, the Navy decided to use military specifications for AFFF. 3M initially supplied military-specific-compliant AFFF that contained PFOS. In 2000, 3M discontinued manufacturing PFOS, and other contractors that used a different AFFF-manufacturing process known as telomerization stepped in to fill the void left by 3M. Although telomer-based AFFF does not contain PFOS, it can degrade into PFOA in the environment.

The Court denied the partial summary judgment on the government contractor immunity defense because the military specification did not constitute a reasonably precise specification. Second, the Court held that there were issues of fact regarding the AFFF manufacturers warning timetable about the dangers of their AFFF products and whether the continued use doctrine applied. The court held that the military specifications were not precise enough because it was “only a performance spec.” Moreover, the Court noted the performance specs allowed “each manufacturer to come up with [it’s] own magic witch’s brew” derived from “at least hundreds of different types of [PFAS].” In regards to the third prong and the “continued use” doctrine, the Court held that all of the AFFF manufacturers “had significantly greater knowledge than the government about the properties and risks associated with their products and knowingly withheld highly material information from the government.” Furthermore, the Court added that the Defendants did not promptly disclose important information to the government.

Concerning insurance, the Court’s holding could have major coverage ramifications. Most general liability policies require any injury or damage for which an insured seeks liability coverage to arise out of an “occurrence,” which is generally defined as an “accident.” If an insured knowingly or intentionally causes injury or damage or it can be proven that they should have known that it would cause injury or damage, this could give the insurance company an avenue to deny coverage. Of course, all states and jurisdictions have their nuances, but parties in PFAS litigation should evaluate Judge Gergel’s opinion to analyze how it could affect their coverage moving forward.

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To continue combating environmental contamination, the New Jersey Department of Environmental Protection (NJDEP) issued new regulations this week, which take immediate effect for four Per- and polyfluoroalkyl substances (PFAS), including perfluorononanoic acid “PFNA,” perfluorooctanoic acid “PFOA,” perfluorooctane sulfonate “PFOS,” and ammonium salt “GenX.” A further decision regarding the implementation of an informal phase-in period is pending. While the designation of PFOA and PFOS as hazardous substances by USEPA is still a pending matter, New Jersey has stepped up its regulation of these substances (and PFNA and GenX) and it is important that environmental professionals, insurance providers, and industry professionals be aware of the tightening regulatory framework for these four PFAS.

Under these new regulations, sites actively performing cleanup activities (or future remediation sites) must investigate for these four PFAS and remediate to levels below the NJDEP’s standards and in accordance with the NJDEP’s timeframes. Although the NJDEP has advised that it will seek to replace the interim regulations as “soon as reasonably possible,” it has been slow to act in the past, and we can expect that the interim regulations may be applicable for some time. The interim regulations are:

PFNA: soil remediation standard: ingestion-dermal residential (mg/kg) 0.047; soil remediation standard: ingestion-dermal nonresidential (mg/kg) 0.67; soil remediation standard: migration to groundwater (mg/kg): area of concern/site specific; soil leachate remediation standard: migration to groundwater (µg/L) 0.26;
PFOA: soil remediation standard: ingestion-dermal residential (mg/kg) 0.13; soil remediation standard: ingestion-dermal nonresidential (mg/kg) 1.8; soil remediation standard: migration to groundwater (mg/kg) area of concern/site-specific; soil leachate standard: migration to groundwater (µg/L) 0.28;
PFOS: soil remediation standard: ingestion-dermal residential (mg/kg) 0.11; soil remediation standard: ingestion-dermal nonresidential (mg/kg) 1.6; soil remediation standard: migration to groundwater (mg/kg) area of concern/site-specific; soil leachate standard: migration to groundwater (µg/L) 0.26;
GenX: soil remediation standard: ingestion-dermal residential (mg/kg) 0.23; soil remediation standard: ingestion-dermal nonresidential (mg/kg) 3.9; soil remediation standard: migration to groundwater (mg/kg): not applicable; soil leachate standard: migration to groundwater (µg/L) not applicable.

The Migration to Groundwater Exposure Pathway areas of concern/site-specific calculations for PFOA and PFOS should be computed using the Synthetic Precipitation Leaching Procedure (SPLP) set forth in Appendix 8 to N.J.A.C. 7:26D. This procedure requires the following:

1) collection of samples and implementation of SPLP procedures in accordance with appropriate NJDEP guidance;
2) input of appropriate values into NJDEP’s SPLP calculator on NJDEP’s website;
3) provision of resultant ARS and modified input parameters used in NJDEP’s SPLP calculator and description and basis of how the samples were selected (including all related laboratory results) in addition to the applicable form on the NJDEP’s website with applicable remedial phase report.

Additional information regarding the NJDEP’s new regulations can be found on their Interim Remediation Standards webpage.

Previous efforts by the NJDEP to publish interim standards without prompt formal rulemaking have been met with challenges and, as such, it is possible that such a challenge will arise concerning the interim regulations published this week. As most know, the regulation of PFAS is rapidly evolving and keeping pace with interim or final regulations, and the challenges to those regulations, is important to understand the shifting remediation standards and risks. Please check back here for an update regarding the implementation of a phase-in period when the Inhalation Exposure Pathway standards are released and as to any challenges made to the interim regulations.

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Forever is a very long time, and scientific advances are beginning to make the phrase obsolete.

Per- and polyfluoroalkyl compounds (PFAS) have proved useful precisely because of the properties which make them difficult to destroy once created. Scientific understanding of environmental persistence and pervasiveness of PFAS, and any associated health effects, continues to develop. As research has continued on PFAS, state and federal governments have, in recent years, taken a more active role in the regulation of PFAS compounds. This activity led USEPA to produce its 2019 PFAS Action Plan, its 2021 PFAS Strategic Roadmap, a host of regulatory advisories and initiatives, and most recently, proposing to designate PFOA and PFOS as Hazardous Substances under CERCLA. The significance of a Hazardous Substance designation for PFOA and PFOS cannot be understated; and will change the remediation standards at contaminated sites, lead to reopeners at long-time closed sites, and will likely mean that the words “hazardous substance” will show up alongside “forever chemicals” in Plaintiff’s toxic tort complaints across the country. Developing alongside these regulations and the understanding of PFAS health effects is a parallel and equally important story of innovation. Recent scientific publications suggest “Forever Chemicals” should be excised from the courtroom vocabulary of legal practitioners and their experts.

However, “forever chemicals,” that sticky phrase, seems to have struck a chord lately in the popular discourse. Once used to refer to PCBs, the phrase had faded from the public eye until recently, according to Google Analytics. USEPA’s February 2019 publication of their PFAS action plan, coupled with a contemporaneous Washington Post op-ed, coincides with an uptick from obscurity to regular engagement with the phrase on the ubiquitous search engine. In recent weeks, “Forever Chemicals” searches appear to be shooting up, with engagement in August of 2022 reaching new highs. USEPA’s continued steps toward a regulatory framework for PFAS (“Strategic Roadmap”; “Drinking Water Health Advisory”; “Hazardous Substance Designation”) have likely contributed to this increase in public awareness, along with the often-recursive cycle of increased media and public engagement.

Against that backdrop, attorneys advancing a PFAS exposure claim may arrive at trial with a messaging advantage, even in the absence of evidence showing elevated levels of PFAS exposure. Some fraction of jurors will no doubt have already heard, scrolled past, or otherwise had some prior experience with the phrase in their daily life by the time they reach the courthouse. Some portion of the expert testimony may include opinions that not only are these compounds potentially harmful to human health, including the plaintiff’s, but they are also a threat to all because they are pervasive and impossible to remove from our water supply, our food, and the built environment. This narrative ticks all of the “reptile tactics” boxes, inviting the jury to go beyond the facts of the case.

Defendants will argue that referring to these chemicals in this way is an attempt to inflame the jury and should be excluded alone. But, the increasing prevalence of the phrase in reference to PFAS may make life more difficult for defendants attempting to exclude it from the courtroom.

PFAS compounds can be stubbornly resistant to neutralization through commonly available hazardous material disposal methods such as incineration. However, thanks to continued scientific efforts to find ways to close the PFAS life-cycle circle, defendants facing this litigation can now argue more effectively that not only is “Forever Chemicals” a reductive, inflammatory phrase that is unhelpful to the jury, but this characterization of PFAS is also out of date. This recent publication by scientists at Northwestern indicates that a relatively low-cost, effective method for destroying captured PFAS may be on the horizon. They have shown that for several classes of PFAS, the tenacious carbon-fluorine bond can be broken, and the remaining benign reaction products can be safely disposed of without exotic materials or energy-intensive heat requirements.

Prevention remains orders of magnitude more potent than cure. Defendants should be cautious not to overplay the upsides of this positive development because the health effects of these compounds as they exist in the environment today are still far from perfectly understood, and this study does not mean the end of PFAS litigation on any foreseeable horizon. For instance, the study does not describe such a simple method for removing PFAS from the human body. Nor does it play any role in reducing the potential health effects of a particular PFAS compound.

What it does instead is underscore the truth; nothing lasts forever, and with some work, the label “Forever Chemicals” won’t either.

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The increasing focus by environmental regulators on per- and polyfluoroalkyl substances (PFAS) continues to develop in significant ways. PFAS have been found in waterproof clothing, non-stick cookware, carpets, fire-fighting foam, and food containers, to name a few examples, among numerous industrial and chemical products. Last year, the U.S. Environmental Protection Agency (“USEPA”) issued its Roadmap previewing its approach to regulating PFAS more aggressively, including, for example, proposing to classify PFAS as “hazardous substances” under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and to invest in ‘researching, restricting, and remediating’ PFAS products, industries, and related activities.

Building upon its Roadmap, on June 21, 2022, the USEPA issued an advisory called Lifetime Health Advisories on Four Perfluoroalkyl Substances, setting interim controls and thresholds for PFAS in drinking water. Soon thereafter, on July 29, 2022, a court action was brought by the chemical industry group, American Chemistry Council (“ACC”), against the USEPA. This case appeals the agency’s advisory action to the District of Columbia Circuit Court of Appeals. American Chemistry Council v. US Environmental Protection Agency, No. 22-1177, U.S. Court of Appeals, D.C. Circuit. This case challenges the USEPA’s advisory and seeks to vacate the interim advisory and remand the issue back to the USEPA for further consideration.

The ACC’s petition specifically targets the USEPA’s lifetime drinking water advisories for two subcategories of PFAS, namely, Perfluorooctanoic Acid (“PFOA”) and Perfluorooctane Sulfonic acid (“PFOS”), asserting that the advisories are both scientifically flawed and procedurally improper, according to the Safe Drinking Water Act (“SDWA”) and the Administrative Procedure Act (“APA”). ACC points to four flaws within the advisories:

The advisories do not apply the best available, peer-reviewed science and supporting studies conducted in accordance with sound, objective scientific practices;
The human health risk communicated in the advisory is incomprehensible, incomplete, and not based on sound science;
The USEPA improperly circumvented the regulatory process for establishing an interim national primary drinking water regulation; and
The advisories are inconsistent with contemporaneous actions the EPA has taken with respect to screening levels for PFOA and PFOS.

The USEPA’s “interim” advisories are based on toxicity assessments that are still currently under review by the Science Advisory Board and are, therefore, likely to change depending on the Science Advisory Board’s recommendations. PFAS are a diverse universe of chemicals used in an extremely large number of applications across many industries. There are thousands of different chemicals within the general group of PFAS. Each chemical has unique properties, the environmental and health impacts of which are not proven to be uniform across all PFAS.

In 2016, the USEPA updated its PFOA and PFOS drinking water health advisories to establish limits of 70 parts per trillion, individually or combined. For context, one part per trillion is equivalent to one drop of water in an Olympic-sized swimming pool. As the ACC points out in its case against USEPA, the recent advisories are 3,000 to 17,000 times lower than those released in 2016. The USEPA, in its most recent advisory, deems one threshold to be one part per quadrillion, which is analogous to 1 drop of water in a thousand such pools. The ACC further analogizes this impossible standard to 1 second compared to 32 million years. The USEPA’s latest advisories effectively establish an interim primary drinking water standard that is impossible to enforce, the primary reason being that the levels of PFOA and PFOS are well below any known technical detection limits established by the USEPA’s validated test methods. As the ACC points out, although the USEPA’s advisories are technically “non-regulatory,” they are presented within an official USEPA “Lifetime Health Advisory.” The USEPA’s Advisory issued in June 2022 was issued prior to a review which is incomplete and still being conducted by the USEPA Science Advisory Board.

These interim advisories will have a further, yet immediate, effect on a substantial number of states that have received USEPA approval to carry out and enforce drinking water programs under the SDWA, as well as remedial cleanup standards. Procedurally, for these reasons, the ACC asks the D.C. Circuit Court of Appeals to strike the USEPA’s new interim decision and send the issue back to the USEPA for consideration under more appropriate scientific and legal foundations. Clearly, if the Court upholds the USEPA’s action, there will be difficulties and confusion across industries, especially where PFAS are difficult, if not impossible, to detect. If the Court sends the issue back to the USEPA, the dispute will hinge upon the degree of USEPA’s patience to consider additional and various comments and scientific perspectives, as well as its willingness to wait until more research based on the scientific method, can be accomplished.

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Maron Marvel director Audrey Anyaele sits down with Matthew Martello, Director of Insurer Activities at Trident Environmental, to discuss the importance of retaining an expert early in the environmental contamination claims process.

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In recent years, there has been no shortage of articles and conferences on the coming wave of PFAS litigation, and with good reason. Heightened scrutiny and tightening regulation by USEPA, the ever-growing AFFF MDL, and the likely listing of PFOA and PFOS as “hazardous substances” make the discussion warranted. Amidst all the explanations of what PFAS are and the litigation risks, one issue that certainly needs to be considered is the consequences of new CERCLA liabilities and “reopener” liabilities once PFOA and PFOS are designated hazardous substances.

When CERCLA was passed in 1980, it did not originally address the finality of settlements for the cleanup of contaminated sites. Some early settlements provided a complete release from all future CERCLA liability, but that changed within a few years. In the 1986 amendments to CERCLA, 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.

As a result of these “reopener” provisions, parties that have settled CERCLA claims with EPA have had to live with the risk that new claims may be asserted to address new cleanup demands arising from previously unknown site conditions or regulatory changes. Reopeners can be triggered in many ways, including new chemical testing and detection methods, new risk assessment standards, newly discovered waste, natural disasters, and perhaps most prominent, new and emerging chemicals of concern, such as PFAS.

Any of these changes may lead EPA to consider triggering the “reopener” provisions of a Consent Decree, and with PFOA and PFOS on track to be listed as CERCLA “hazardous substances” sometime in 2023, reopeners based on the presence of these substances seem increasingly inevitable. In instances where reopener liability is triggered at a site, private parties and insurance providers can take many steps to protect their interests and respond to the demands of reopener liabilities, such as:

Review the Consent Decree and reopener language: Although required after the 1986 CERLCA revisions, reopener language is not the same in every CERCLA settlement document. In recent years, EPA has mandated that settling parties accept the standard reopener language in model administrative orders and consent decrees, but historically, there was more discretion in some instances. For example, in the 1980s and 1990s, there was somewhat more leeway to negotiate reopener provisions that were more limited in scope. This leaves the possibility that arguments to limit a party’s potential liability even when EPA alleges that a reopener has been triggered.
Evaluate a “divisibility” defense with counsel: Among the important findings in Burlington Northern and Santa Fe Railway v. United States, 556 U.S. 599 (2009) was the finding that joint and several liability for conditions at an NPL site is not automatic. For reopeners, this means that a party may argue that the substances and conditions that give rise to a reopened liability claim are attributable to others. For instance, if the detection of certain PFAS, say PFOA, is the only reason for remedial action/feasibility study (and the costs associated with the RI/FS), then a party that did not contribute PFOA substances has the opportunity to prove its “innocence,” leaving others to bear the risk of new CERCLA liability. Therefore, knowing the substances or materials contributed to a site by a party has increased importance and should be determined as soon as the possibility of a reopener for PFAS, or any other substance for that matter, is being considered.
Reengage the existing settling parties: Parties and counsel that took part in the original settlement at a contaminated site may have changed over time. That is particularly true for sites where the Consent Decree was entered in the 1980s and 1990s. Those still viable and active can use their historic knowledge to work together, forming an organized and efficient team for addressing reopened liability claims. For others, investigating corporate name changes, mergers, liability transfers by other means, and even bankruptcy status of prior settling parties becomes a critical part of dividing liabilities among responsible parties.
Take the Time to Review Bankruptcy releases: Invariably, as time passes some of the settling parties to a CERCLA site will have filed for bankruptcy. For those settling parties that are discovered to have gone through bankruptcy, the terms of any bankruptcy discharge order must be evaluated. The discharge of environmental liabilities, which is often accomplished through the bankruptcy process, cannot be taken for granted. It is important to review the discharge orders to determine if the CERCLA reopener liability has been discharged.
Preserving insurance coverage: Finally, if a responsible party has not exhausted its insurance coverage at a particular site for the occurrence, then timely notice to the carrier is an essential step to securing coverage that may help fund the party’s CERCLA liability. It is also possible that a new CERCLA claim and Special Notice Letter from USEPA triggered by a reopener event will, in many instances, trigger new coverage. Therefore, policies old and new should be reviewed for potential coverage.

The widespread use of PFAS over several decades, along with the increasing likelihood of PFOA and PFOS listing as CERCLA “hazardous substances,” makes it very likely that a run of reopeners to investigate and remediate these substances is almost here. Indeed, at some sites, USEPA is already asking that PFAS be investigated as part of ongoing investigations. Being mindful that reopeners for PFOA and PFOS remediation are likely coming, knowing what steps to take when a reopener notice comes will be critical and may lead to cost-saving measures for responsible parties as expensive remediation plans are required to be put in place.

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In a key ruling on the limits of the Environmental Protection Agency (EPA) to enact regulations under the Clean Air Act, the U.S. Supreme Court ruled the agency had exceeded its authority when it promulgated the Clean Power Plan.

The decision pits the proponents of administrative agencies’ authority to enact regulations that impact climate change against the proponents of restricting agencies’ authority to regulate the industry and the economy and shrink the federal government’s role in such regulation.

The majority, led by Chief Justice John Roberts, wrote that the EPA’s Clean Power Plan required the states to regulate power plant carbon dioxide emissions more stringently and that the Clean Air Act did not give the agency such authority.

The EPA’s Clean Power Plan, issued in 2015 during then-President Obama’s administration, shifted power generation away from fossil fuel plants to cleaner sources.

To do so, the Court ruled that a “decision of such magnitude and consequence rests with Congress itself, or a clear delegation from that representative body.” In the 6-3 opinion, Chief Justice John Roberts was joined by Justices Thomas, Alito, Gorsuch, Kavanaugh, and Barrett.

Justice Elena Kagan wrote the dissent and was joined by Justices Breyer and Sotomayor. In the dissent, Kagan wrote that the Court’s decision “stripped the [EPA] of the power that Congress gave it to respond to ‘the most pressing environmental challenge of our time.’… The court appoints itself – instead of Congress or the expert agency – the decisionmaker on climate policy. I cannot think of many things more frightening.”

The impact of the decision will likely result in more pressure on state and local governments to control air emissions. It may also signal a move toward restricting the EPA’s rule-making authority in other areas and, more generally, restricting other administrative agencies’ authority to regulate.

The full opinion of the Court in W. Virginia v. Env’t Prot. Agency, No. 20-1530, ___ S.Ct.___ (U.S. June 30, 2022), is available at: https://www.supremecourt.gov/opinions/21pdf/20-1530_n758.pdf.

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In keeping with its promise to aggressively pursue regulation of PFAS, the US Environmental Protection Agency (EPA) on Wednesday, June 15th, announced new advisory limits for four kinds of PFAS, warning that the compounds are far more toxic than previously thought. In fact, EPA estimates that PFAS are contaminating the drinking water of more than 200 million people, and the new limits could have significant financial consequences.

Since 2016, the EPA has worked off a health advisory limit of 70 parts per trillion (ppt) for PFOS and PFOA, two compounds commonly produced and used for decades. The new limits are 0.02 ppt for PFOS and 0.004 ppt for PFOA.

The revised health guidelines are based on new scientific studies conducted by EPA and, according to EPA, consider a lifetime exposure to the chemicals. Officials are no longer confident that PFAS levels allowed under the 2016 guidelines “do not have adverse health impacts,” an EPA spokesman said.

Speaking to reporters Tuesday night, EPA officials recognize that while the new guidelines set acceptable risk below levels that can currently be measured, EPA recommends that utilities take action against the chemicals when they reach levels that can be measured, currently about four parts per trillion.

The EPA said it still expects to propose national drinking water regulations for PFOA and PFOS later this year, with a final rule expected in 2023, in accordance with the plans laid out in last year’s PFOAS Roadmap.

At the same time, the EPA announced that, for the first time, it is issuing final health advisories for two chemicals that are considered replacements for PFOA and PFOS. One group is known as GenX chemicals, while the other is known as PFBS. Health advisories for GenX chemicals were set at ten parts per trillion, while PFBS was set at 2,000 parts per trillion.

Undoubtedly, these new advisory limits will be challenged by industry and utilities. But for now, it can be expected that the plaintiff’s bar will use these incredibly low advisory limits to file suit whenever PFOA or PFOS rise above detectable limits to claim contamination to property or exposure.

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Causation is a vital component of any environmental or toxic tort lawsuit. The idea of causation requires that a plaintiff show a causal connection between their injury and the defendant’s action to ensure remedies for the injury come from those who are responsible. In the world of environmental and toxic tort litigation, establishing causation is usually left to the experts. Retaining an expert pre-litigation, or at the beginning of litigation, can set the stage for favorable and cost-saving results in the ever-expanding environmental claims that companies face.

Typically, defendants may have an idea of the type of environmental experts they intend to rely upon for their defense but wait to retain these experts until a significant amount of discovery is already completed, including written discovery, depositions, and site investigation by the claimant. While this is quite common, there are many defenses and strategies forfeited when a defense expert is not involved at the earliest stages of litigation in an environmental or toxic tort claim. At the heart of so many of these claims is whether a contaminant of concern to the claimant can be connected to an individual defendant or defendants in a claim. The sooner an expert can enter the discussion and definitively disconnect the substance from the client or the claimed injury, the better.

This is especially true in environmental premise liability claims that may involve a great deal of investigation and testing long before litigation has commenced. Matthew Martello, Director of Environmental Engineering at Trident Environmental, stresses the importance of involving environmental experts in pre-litigation. His experience with contaminated sites over the years has shown that there is almost always some level of contamination or spoliation of evidence from an environmental standpoint by the time you have entered into litigation because experts are backtracking to the beginning to gain an understanding of the causation. However, when defendants and their experts are involved in the investigation, testing, and sampling at the earliest stage possible, it allows the expert to “send the angry mob in the right direction early, rather than pay a significant amount of money to redirect them down the line,” according to Mr. Martello. In these situations, defendants have the added benefit of conducting their own sampling and testing rather than relying upon the test results supplied by the plaintiff, which is often completed by a third-party contractor or consultant that plays a minimal role, if any, in the overall litigation or resolution of the claim investigation.

Another benefit of retaining a causation expert pre-litigation when facing environmental claims is that it allows a potential defendant to set up its causation defense at the outset and ensure that the expert retained is useful to the court and jury in the event of a trial. Courts regularly maintain that an expert must be qualified and experienced in the topic on which they are giving an expert opinion. Beyond that, the opinions offered must match the data, especially in a toxic exposure case. When an expert is retained before the commencement of written discovery, the expert and counsel can work together to propound specific and targeted discovery demands challenging the plaintiff’s theory of causation. Further, this early and targeted discovery can have lasting impacts on the success of a case in court. Recently, the New York Court of Appeals overturned a $16.5 million jury verdict for the husband of a woman who died from peritoneal mesothelioma.[i] The plaintiff alleged that his wife’s disease was caused by over a decade of daily exposure to asbestos-contaminated talcum powder. In overturning the verdict, the Court of Appeals held that plaintiff’s experts failed, as a matter of law, to establish the decedent’s exposure to the toxin, that the toxin was capable of causing the particular illness (general causation), and that decedent was exposed to sufficient levels of the toxin to cause the illness (specific causation). Defendants’ successfully challenged the method and means utilized by plaintiffs’ experts to establish their conclusions regarding exposure and injury. This decision reaffirms the significant role that experts play in an environmental or toxic tort exposure case. As such, it is imperative to involve the causation experts early and efficiently to maximize the likelihood of success of a defense.

For insurance claims, early expert involvement puts the carrier on notice of causation issues that may arise for a particular exposure incident in which multiple claims are anticipated, such as a pollution or premise liability matter relating to a particular contaminant. The expert’s causation analysis provides an opportunity to assess liability prior to litigation and identify the potential volume of claims associated with the exposure incident. This can put the carrier on notice of the type of claims to anticipate in order to assess the value of future claims and respond uniformly, potentially eliminating or mitigating litigation costs in the long run.

While pre-litigation expert retention requires undertaking costs and expenses in anticipation of litigation, the upside is significant and can be critical to setting up a defense for negotiation of a resolution or should litigation come about. In time, this can lead to a cost-savings far beyond the initial early retention costs. As emergent contaminants continue to dominate the environmental arena, both environmental/toxic tort defendants and insurance carriers should strongly consider the benefits of retaining an expert sooner rather than later when defending against these ever-evolving claims.

[i] See Nemeth v. Brenntag N. Am., 2022 Slip Opinion 02769 (April 26, 2022).

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In recent days, the U.S. Department of Justice (DOJ) has made a series of announcements aimed at addressing environmental justice concerns and enforcement practices. The actions taken by DOJ include the establishment of the new Office of Environmental Justice (OEJ), the launch of DOJ’s comprehensive Environmental Justice Enforcement Strategy, and the release of an Interim Final rule to restore DOJ’s ability to include supplemental environmental projects (SEPs) in settlements.

On May 5, it was announced that the new OEJ will reside within DOJ’s Environment and Natural Resources Division (ENRD) and, according to Attorney General Garland, will “serve as the central hub for [DOJ’s] efforts to advance [the] comprehensive environmental justice enforcement strategy.” The office will support environmental justice investigations, develop implementation instructions, and resource materials related to environmental justice, prioritize meaningful engagement with communities affected by environmental crime and injustice, and develop a plan for increased transparency regarding environmental justice work within the agency as part of DOJ’s Environmental Justice Enforcement Strategy.

The Environmental Justice Enforcement Strategy outlines four guiding “principles” along with specific actions to facilitate implementation:

Prioritize cases that will reduce public health and environmental harms to overburdened and underserved communities. With this principle, DOJ is committing to prioritizing cases that will have the greatest impact on the most overburdened communities impacted by environmental harm. To implement this principle, an Environmental Justice Enforcement Steering Committee will be created to develop strategies for evaluating environmental justice impacts during investigations, designate environmental justice coordinators in U.S. Attorneys’ Offices, pursue Tribal environmental justice and create environmental enforcement task forces to coordinate with local and regional authorities including EPA’s enforcement office.
Make strategic use of all available legal tools to address environmental justice concerns. With this principle, DOJ will pursue timely remedies in enforcement matters, including remedies to stop ongoing violations and remedy past violations. Of note is the principle’s focus on using statutes not typical of environmental enforcement to advance results in affected communities. This includes possible violations of Title VI of the Civil Rights Act, the Occupational Safety and Health Act, the Consumer Product Safety Act, the Federal Food, Drug, and Cosmetic Act, and the False Claims Act (FCA). Significantly, under the FCA a company found to make false statements about the environmental and public health impacts (think about a company’s ESG Statement) could face treble damages if they receive federal funding.

Ensure meaningful engagement with impacted communities. This principle seeks to provide communities with a voice in government decisions that affect the community. As such, attorneys will be directed to develop case-specific community outreach plans as part of their investigation with the referring agency.
Promote transparency regarding environmental justice enforcement efforts and their results.  This principle aims to provide greater transparency as DOJ develops standards to assess enforcement outcomes and track progress under the strategy to provide greater accountability to the public.

Finally, DOJ’s ability to use SEPs is being restored under an Interim Final Rule. SEPs are voluntary projects that provide environmental benefits to local communities that can help offset the penalties imposed by DOJ.  This move restores the use of this settlement tool that the previous administration banned, except in limited situations, out of concern that they amounted to unlawful settlement payments to non-governmental third parties.

To address those concerns, DOJ issued a memorandum outlining guidelines for SEPs designed to ensure their appropriate use.  Pursuant to the memorandum, DOJ will require that SEPs have a clearly defined scope and a strong connection to the underlying federal violations at issue. It remains unclear exactly how SEPs will be utilized and implemented differently than in the past. 

One thing is clear with these announcements, the Administration’s goal of a greater emphasis on environmental justice in overburdened communities is being advanced within DOJ. With that in mind, it will benefit all industries to work closely with their enforcement counsel to be cognizant of the complexities in this new enforcement and settlement landscape.

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