We are pleased to present you with Taft’s Environmental newsletter, a collection of insights from our team to yours. For more information on our environmental practice, please visit www.taftlaw.com.

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ARTICLES
Imminent Regulation of “Forever Chemicals” Could Impact Today’s M&A and Real Estate Deals
By: Rob Bilott and Frank Deveau

In the past few years a family of thousands of chemicals, known as PFAS, which have been used in various industries since the 1940s, have been determined to be a significant health and environmental hazard. U.S. Environmental Protection Agency (EPA) recently announced that it would move forward with the process toward listing two PFAS chemicals, PFOA and PFOS, as Superfund hazardous substances by the end of 2019. U.S. EPA has also announced that it intends to move forward with the process to determine whether to establish a drinking water maximum contaminant level, or MCL, for PFAS chemicals in the near future. Several states, such as New Jersey, Vermont, Michigan, New Hampshire and New York, are already moving forward with setting MCLs or other types of drinking water standards or guidelines for one or more PFAS chemicals. Congress has gotten involved in the effort to address PFAS emissions and exposures as well. However, it’s not clear if and when PFAS legislation will be enacted.

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Corporation Held Liable as CERCLA Arranger For Knowingly Offloading Contaminated Buildings
By: Jeff Stemerick

In United States v. Dico, Inc., 920 F.3d 1174 (8th Cir. 2019), the Eight Circuit expanded CERCLA arranger liability by finding that the former owner of a contaminated property was an arranger for selling the property knowing that the buyer was likely to demolish the contaminated building. Dico, Inc’s (Dico) site had a building contaminated by PCBs in its insulation and was subject to an Environmental Protection Agency (EPA) administrative cleanup order. Without informing the EPA, Dico sold the contaminated buildings to Southern Iowa Mechanical (SIM). Dico did not tell SIM about the PCB contamination or the EPA order. SIM tore down the contaminated buildings and EPA sued Dico to recover cleanup costs. EPA alleged that Dico was subject to CERCLA liability because it arranged to dispose of a hazardous substance.

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Death, Taxes and CERCLA
By: Vivek Hadley

Benjamin Franklin famously said that nothing in this world is certain, except death and taxes. A recent decision from the Southern District of Ohio ruled that in some circumstances, not even death can save a party from CERCLA liability.

In Garrett Day, LLC v. International Paper Co., No. 3:15-CV-36, 2019 WL 1331680 (S.D. Ohio Mar. 25, 2019), several parties fought over who should pay for the expensive cleanup of a former paper mill that operated for 100 years in Dayton, Ohio. The site contained several hazardous substances like asbestos, trichloroethylene, polycyclic aromatic hydrocarbons and polychlorinated biphenyls. The current owner of the site brought a CERCLA claim and a similar state law claim against former owners and operators who may have contributed to the contamination.

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Exclusive or Inclusive? Supreme Court to Decide the Applicable Remedies to Those Effected by the Anaconda Smelter Superfund Site
By: John Huldin

The Supreme Court of the United States has granted certiorari in Atlantic Richfield Co. v. Gregory A. Christian et al. 17-1498 to address whether state statutes requiring remediation in addition to or inconsistent with what is required by the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) are preempted, whether landowners not named as potentially responsible parties are preempted from pursuing potentially responsible parties after the Environmental Protection Agency (EPA) has selected a remedy and whether state law remedies that are additional to and inconsistent with EPA’s selected remedy are preserved under CERLCA’s savings clauses.

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Colorado’s Rocky Mountain Arsenal Is the Subject of Ongoing Litigation Over Environmental Cleanup
By: Frank Deveau

In Colorado Department of Public Health & Environment v. United States, No. 17-cv-02223-RM-SKC, 2018 U.S. Dist. LEXIS 35427 (D. Colo. Mar. 13, 2019), the court held that a lawsuit brought by the Colorado Department of Public Health and Environment (CDPHE) against Shell Oil Company (Shell) and the United States can continue, in part.

Rocky Mountain Arsenal (RMA) is a former military installation where Shell and the United States disposed of waste in an impoundment known as “Basin F.” CDPHE filed suit alleging, that 1) Shell and the United States failed to obtain a required post-closure permit for Basin F; and 2) the United States transferred a parcel of RMA to Commerce City in 2007. The Environmental Protection Agency (EPA) has delegated Resource Conservation and Recovery Act (RCRA) enforcement authority over RMA to the CDPHE.

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