On May 25, 2021, the U.S. Supreme Court issued a unanimous opinion in a case addressing whether a settlement agreement resolving Clean Water Act (CWA) liability can ripen a cause of action for contribution action under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund). For companies crafting settlement language related to environmental contamination or preparing to file contribution claims, Guam v. United States provides an important consideration regarding what potential liabilities to include or leave out.
On Tuesday, April 13, Reps. Debbie Dingell and Fred Upton, both D-Mich., introduced the PFAS Action Act of 2021, seeking further regulation of per- and polyfluorinated substances (PFAS). Most notably, the bill would require the U.S. Environmental Protection Agency (EPA) to take action to address two PFAS chemicals — PFOA and PFOS — through a number of regulatory provisions: designating PFOA and PFOS as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act, designating PFOA and PFOS as hazardous air pollutants under the Clean Air Act, and requiring EPA to establish national drinking water standards for PFOA and PFOS. (more…)
On January 8, 2021, the U.S. Supreme Court took up a Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) dispute involving the territory of Guam and the United States. At issue in Guam v. United States is who must pay for cleanup costs associated with a landfill formerly operated by the U.S. Navy, into which the Navy deposited spent munitions, chemicals, and other waste. Although Guam asked EPA to address the landfill under CERCLA, the agency proceeded under the Clean Water Act (CWA) instead, and in 2004, Guam entered into a consent decree under the CWA under which the territory agreed to close and remediate the landfill.
On September 8, 2020, in New Jersey Department of Environmental Protection (NJDEP), et al. v. American Thermoplastics Corp., et al., the U.S. Court of Appeals for the Third Circuit limited the liability shield a potentially responsible party (PRP) receives when it settles a cost recovery action with a state under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The court held that “a settling-PRP is protected only insofar as a consent decree and a contribution action address the same matters. In effect, our decision encourages a PRP to settle with both the relevant State and Federal Governments.”