Third Circuit Limits CERCLA Liability Shield

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.”

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EPA Enforcement Priorities in U.S. Pesticide Law

An ELI & Sidley Austin LLP Co-Sponsored Webinar

The U.S. Environmental Protection Agency has long governed federal pesticide law under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). FIFRA has a broad reach, overseeing conventional insecticides, but also plant growth regulators, antimicrobial surface disinfectants, pesticide “devices” like germicidal ultraviolet light systems or ozone generators, and more. Currently, EPA has continued to stress FIFRA as a leading priority area in national enforcement guidance.

Under FIFRA, EPA has specific authority to regulate products meant to provide surface disinfection from bacteria, microbes, and viruses. Indeed, products making claims to mitigate SARS-CoV-2, the novel coronavirus causing COVID-19, have fallen under intense scrutiny from EPA recently. Meanwhile, the focus on FIFRA compliance issues is increasingly intersecting with EPA’s growing scrutiny of imports to the U.S. Import reviews target traditional pesticide products, and now also center on nontraditional items such as UV lights and air purifiers.

Given these trends, questions are arising over EPA’s enforcement priorities in U.S. pesticide law. What are EPA’s strategies for enforcing federal pesticide law? What new or unexpected directions is the agency focusing on, especially in regards to compliance of nontraditional products, including those created in response to COVID-19? Expert panelists will address these questions, provide practical guidance on compliance with FIFRA, and explore FIFRA enforcement priorities.

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EPA Issues Final Power Plant Wastewater Rule

On August 31, 2020, the U.S. Environmental Protection Agency (EPA) announced a final rule addressing effluent concentration limits for certain metals in power plant wastewater under the Clean Water Act. The Steam Electric Reconsideration Rule (SERR) changes several aspects of the coal-fired power plant effluent limitations included in the 2015 Effluent Limitations Guidelines and Standards rule, including the limits for two waste streams: flue gas desulfurization (FGD) wastewater and bottom ash (BA) transport water.

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EPA Publishes Toxic Substances Control Act Risk Evaluation Scope Documents and List of Businesses Subject to Fees

On September 4, 2020, the U.S. Environmental Protection Agency (EPA) published scope documents for 20 high-priority chemicals that will undergo risk evaluation under the Toxic Substances Control Act (TSCA). The scope documents set frameworks for evaluating these 20 chemicals in light of their conditions of use, hazards, exposures, and potentially exposed or susceptible subpopulations. TSCA directs EPA to complete risk evaluations for these 20 chemicals over the next three years.

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California NOx Omnibus Regulation Requires 90 Percent NOx Reduction by 2027

On August 27, 2020, the California Air Resources Board (CARB) approved the Heavy-Duty Low NOx Omnibus Regulation (Omnibus Regulation), which requires heavy-duty truck manufacturers to achieve stringent nitrogen oxide (NOx) emission standards. The Omnibus Regulation follows the board’s June 2020 approval of the Advanced Clean Trucks regulation, which requires medium- and heavy-duty truck manufacturers to increase the sales of zero-emission models. Both rules require that certain compliance milestones be met by 2024.

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SEC Updates Disclosures Required by Regulation S-K — Impact on Environmental Disclosure

On August 26, 2020, the U.S. Securities and Exchange Commission (SEC) adopted amendments to “modernize” its rules requiring disclosure about a company’s business description, legal proceedings, and risk factors. The SEC amended these items to make them more clearly principles-based as well as to enhance the readability of disclosures, discourage repetitive and immaterial disclosures, and reduce the compliance burden on companies. The amendments were adopted substantially as proposed by the SEC in August 2019 with certain modifications. With regard to environmental matters, one of the amendments broadens disclosure about the material effects of environmental compliance to encompass the material effects of compliance with all laws, while the other changes the threshold for disclosure of environmental legal proceedings involving the government.

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