Webinar – New CERCLA PFAS Designations: Strategies for Managing Risks and Moving Deals Forward
In our recent webinar, industry experts shared their unique perspectives on the implications of the new PFAS designation under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) for all stakeholders involved at a site where PFAS contaminants are present or likely present. The panel’s conversation covered technical, legal, and insurance perspectives now that the U.S. EPA’s Final Rule listing PFOA and PFOS as hazardous substances under CERCLA became effective July 8, 2024.
THE KEY TAKEAWAYS:
1. An ASTM E1527-compliant Phase I Environmental Site Assessment must now consider whether the presence, or likely presence of PFOA and PFOS exists to obtain liability exemption.
2.While the ruling only recently went into effect, Superfund liability is retroactive. A Potentially Responsible Party (PRP) can be held liable for PFOA and PFOS releases – including those that occurred before the Final Rule was issued.
3.EPA can order investigations and cleanups of PFOA and PFOS and recover such costs from PRPs. However, EPA intends to focus on entities who “significantly contributed” to the release of PFAS contamination into the environment.
4.Industrial properties are at higher risk. These include PFAS manufacturers, onsite Aqueous Film Forming Foam (AFFF) use, past fire responses where AFFF was used, landfills/waste disposal, and wastewater treatment plants. NAIC codes can help identify sites and adjoining sites most at risk.
5.Other PFAS compounds may still be considered a business environmental risk. While PFOA and PFOA are currently the only two PFAS chemicals added to CERCLA, nine additional PFAS compounds may be included under CERCLA in the future.
6.Environmental Insurance Considerations. Currently, three types of environmental insurance policies can be considered to mitigate liability risk for different scenarios. Policies covering PFAS may be harder to obtain in the future, but some older policies may not have PFAS exemptions. Environmental professionals should have Contractors Pollution Liability, especially if they are moving and/or remediating PFAS contaminants.
Since the update to CERCLA regarding PFOA and PFAS is new, a shift in litigation is expected to pick up quickly. It is important to stay abreast of new changes and policies to protect yourself and your clients.
Disclaimer: ERIS is providing this topic to you for your information purposes only. ERIS has no opinion one way or another regarding the subject matter.
About the Speakers:
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Dana Wagner, CHMM, Director of Environmental Due Diligence Services / Senior Principal and Vice President, Terracon Dana Wagner is a Senior Principal and Vice President of the firm. He serves as the Director of Environmental Due Diligence Services and Leads the Financial Legal and Investment Sector of National Accounts. He has 33 years of experience managing thousands of due diligence projects across the United States, Canada and Mexico as well as experience in Europe and Asia. Dana specializes in transaction-oriented environmental due diligence, particularly for the financial, legal and investment sectors. He has represented buyers and sellers in stock and asset transactions, providing Phase I & II environmental site assessments, regulatory compliance audits, strategic planning for environmental matters, and post-closing site response. Dana advocates for team-oriented, client-focused and innovative approaches in the due diligence practice. |
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Meaghan A. Colligan, Partner, Holland & Knight LLP Meaghan A. Colligan is an attorney licensed in Washington, D.C., and New York and a member of Holland & Knight’s Public Policy & Regulation Group. She focuses her practice in the areas of environmental, land use, renewable energy and municipal law.Ms. Colligan provides strategic legal, policy and business advice to manufacturing, transportation and energy clients that are developing innovative technologies and sustainable practices that reduce emissions, increase renewable energy, increase the recyclability and sustainability of products, and reduce the amount of waste in landfills and the ocean. Her work is grounded in guiding and assisting industries with formulating regulatory, legislative, and operational pathways to create and transition to a circular economy and deploy renewable energy.While the nation transitions with a focus on environmental sustainability goals (ESGs) and decarbonizing, Ms. Colligan assists companies with mitigating environmental contamination risks and successful reuse of impacted properties. This work includes Superfund, Clean Water Act (CWA), Clean Air Act (CAA), Resource Conservation and Recovery Act (RCRA), and tort litigation and enforcement defense; brownfield redevelopment with renewable energy sources; and environmental support in real estate and corporate transactions involving potentially contaminated land and compliance concerns. Ms. Colligan has extensive experience with issues related to site selection and permitting for innovative development, and emerging contaminants, such as per- and polyfluoroalkyl substances (PFAS).Ms. Colligan also assists companies with preventing new impacts through the development and management of environmental, health and safety compliance programs. This also includes building out ESG programs and assisting with product compliance concerns related to FIFRA, TSCA, and green marketing and labeling. Her work includes frequent contact with the U.S. Environmental Protection Agency (EPA) and state environmental regulatory agencies; negotiations between companies regarding their “fair share” of cleanup costs for historic contamination at large Superfund sites; and complex financial, business, insurance and engineering risk analysis. |
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Jared Dubrowsky, Senior Vice President, NFP Jared Dubrowsky is the Senior Vice President of NFP’s Environmental Insurance practice. Jared has over 20 years of experience in Environmental Risk Management and Insurance.Jared works with buyers, sellers, and operators of properties as well as business owners to identify their environmental exposures and design environmental insurance programs that ensure that exposure is properly insured.Before entering the insurance arena, Jared worked in various roles within the environmental field including Regional Environmental Risk Officer for Santander Banks, Multi-family Specialty Lending Unit, Project Manager and Environmental Specialist with the City of New York, Department of City Planning and Environmental Specialist at Stantec Consulting.Jared previously served as a volunteer firefighter for over 17 years with the Hewlett Fire Department. Jared was a Certified Interior Fire Fighter and Motor Pump Operator where he had hands on experience with AFFF foam. |
About the Moderator:
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Scott Davis, SVP, Industry Engagement, ERIS Scott joined ERIS with the merger of GeoSearch in December 2020. Scott was a founding partner and the Chief Operating Officer of GeoSearch for over 23 years. Upon his arrival at ERIS, Scott was responsible for the development and implementation of ERIS operational strategies and service processes. As of March 2022, Scott was appointed Senior Vice President, Industry Engagement, to oversee ERIS’ significant activities in the market, engaging with customers, association interests, tradeshows, and developing webinars, podcasts, and promoting industry thought leadership. Additionally, Scott has a significant depth of industry experience including project management, technical support for numerous environmental assessments, feasibility studies, and wetland determinations throughout the United States while working at Carter & Burgess, Maxim Engineering, Huntington and Southwestern Labs. Scott is the treasurer for the Industry Council on the Environment (ICE), founder and board member of the Central Texas Association of Environmental Professionals, and the Vice President of Municipal Utility District 23. |