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
 
EPA Announces Strategic Roadmap to Tackle PFAS From All Directions
By: Amber Lucci
On Oct. 18, EPA announced its comprehensive PFAS Strategic Roadmap (Roadmap), which lays out a comprehensive approach to tackling PFAS contamination within the U.S. For decades, PFAS — short for per- and polyfluoroalkyl substances — have been widely used to manufacture a wide variety of products, such as nonstick cookware, fire-fighting foam, and water- and stain-resistant fabrics and materials. PFAS are known as “forever chemicals” because of their inability to naturally break down over time, leading to accumulation in humans and the environment. These chemicals’ widespread use and pervasive nature, along with a lack of regulations regarding use and disposal, has caused EPA to identify PFAS contamination as one of its top areas of concern for a number of years. This Roadmap follows previous EPA action plans on PFAS from 2009 and 2016.

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Troubled Water: Ninth Circuit Allows Trial on City’s RCRA Liability for Distributing Contaminated Groundwater
By: John Huldin

Many municipalities, cities, and utilities obtain water from groundwater supply wells. While groundwater is an excellent source of plentiful water, expansive underground aquifers are frequently contaminated by nearby historic commercial and industrial facilities. This poses obvious problems for municipalities and utilities that rely on them. In California River Watch v. City of Vacaville, 14 F.4th 1076 (9th Cir. 2021)), the Ninth Circuit added another — the potential for transporter liability under the Resource Conservation and Recovery Act (RCRA). A California nonprofit, River Watch, sued the City of Vacaville, Calif. alleging the city was a RCRA transporter for drawing contaminated groundwater from its wells and delivering it to residents — even though it played no role in discarding the waste.

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EPA Releases New Testing Method in Ongoing Effort To Address PFAS Contamination in Pesticide Packaging
By: Chase Dressman and Aren Olson

The Environmental Protection Agency (EPA) has recently released an agency-validated analytical method for identifying over two dozen per- and polyfluoroalkyl substances (PFAS) in oily matrices. The new analytical method aims to help pesticide manufacturers, state regulators, and other interested parties test pesticide products for PFAS compounds in response to recent surprising testing that detected PFAS in EPA-registered pesticide products.

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Significant Changes Proposed for Minnesota Certificate of Need, Siting, and Routing Rules for Large Electric Generating Facilities and High-Voltage Transmission Lines
By: Peter Madsen
On Oct. 11, 2021, the Minnesota Public Utilities Commission issued a Statement of Need and Reasonableness (SONAR) regarding proposed amendments to the certificate of need and site and route permit application administrative rules for large electric generating facilities and high-voltage transmission lines (HVTLs), chapters 7849 and 7850. In addition, the commission proposed amendments to rules governing the certificate of need notice plan filing requirements under Minn. R. 7829.2550. This is the first comprehensive proposed revision of these rules since 2005.
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Seventh Circuit Clarifies Standard for Apportionment in CERCLA § 107(a) Cases
By: Frank Deveau, Chase Dressman, and Aren Olson

In a recent decision, the Seventh Circuit clarified that to qualify for “apportioned” — rather than “joint-and-several” — liability under CERCLA § 107(a) a defendant must show that there is a factually grounded basis to divide the harm. As a general matter, CERCLA § 107(a) imposes joint-and-several liability on defendants, meaning that it holds each defendant liable for all the harm. An exception exists, however, when the defendant can show that its contribution to the harm is capable of “apportionment,” in which case the defendant is only liable for the harm it has actually caused. Given the draconian nature of joint-and-several liability, the Seventh Circuit’s decision — Von Duprin LLC v. Major Holdings, LLC, ___ Fed.4th ___, Nos. 20-1711, 20-1793, 2021 WL 4025150 (7th Cir. Sept. 3, 2021) — provides important guidance to parties facing CERCLA § 107(a) liability.

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Seventh Circuit Confirms That Strict Compliance is Necessary To Qualify for CERCLA’s BFPP Defense
By: Frank Deveau, Chase Dressman, and Aren Olson

For years, parties have relied on the Bona Fide Prospective Purchaser (BFPP) defense as a smart way to acquire property while protecting themselves from liability under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). A recent decision out of the Seventh Circuit, however (Von Duprin LLC v. Major Holdings, LLC, ___ Fed.4th ___, Nos. 20-1711, 20-1793, 2021 WL 4025150 (7th Cir. Sept. 3, 2021), confirms that parties must be extremely attentive when seeking refuge under the BFPP defense. The Seventh Circuit held that the BFPP defense will only be available to parties in full compliance with the “all appropriate inquires” requirements in CERCLA’s implementing regulations (40 CFR Part 312). Given the need for strict compliance, parties interested in leasing, purchasing, or otherwise acquiring property with known or potential environmental issues should carefully scrutinize their environmental assessments and adhere to EPA’s requirements to maximize their protections against historic liabilities at the site. Failure to do so could result in significant and draconian joint and several liability under CERCLA.

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