Winston’s Environmental Law Update focuses on legal environmental policies and issues facing industry investors, real estate or energy project developers, and financial institutions. As the political, corporate, and regulatory responses to environmental initiatives evolve, it is our goal to help our clients understand the risks and opportunities these initiatives present and develop strategic responses that cut across multiple legal disciplines. The blog provides an avenue to bridge the gap between law and policy and compliance and execution.
Proposed Changes to ASTM Standard for Phase I Environmental Site Assessments to Include PFAS as a Non-Scope Consideration 10/21/21
For close to two years, a task force of due diligence consultants, lenders, attorneys, and other professionals have been working to revise the American Society for Testing and Materials (ASTM) International Phase I Environmental Site Assessment (Phase I) Standard E1527-13 to account for per- and polyfluoroalkyl substances (PFAS). The ASTM Standard is used by purchasers of real property to meet the “all appropriate inquiries” requirement of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) to establish the innocent landowner, contiguous property owner, or bona fide prospective purchaser defenses to CERCLA liability. These defenses are used to limit the buyer’s liability for historic contamination that pre-dates their ownership. Phase Is are also often used in corporate transactions as a part of environmental due diligence, including in transactions where these CERCLA defenses would not apply.
On October 4, 2021, the U.S. Fish & Wildlife Service (USFWS) issued a final rule revoking the Trump administration’s Migratory Bird Treaty Act (MBTA) rule. This revocation will be effective December 3, 2021. By revoking the Trump-era rule, USFWS is returning to the pre-2017 interpretation of the MBTA where incidental take of migratory birds is a crime. Concurrent with the revocation, USFWS issued an advanced notice of proposed rulemaking (ANPR) for an MBTA incidental take permitting program.
On September 23, 2021, several farmworker groups, green groups, and health organizations challenged EPA’s reapproval of paraquat dichloride. Paraquat dichloride, known simply as paraquat, is a weed killer. It has been widely used in the United States since the 1960s. Petitioners seek to set aside EPA’s interim registration review decision. They allege links to Parkinson’s disease and other adverse health effects. Numerous lawsuits are already pending against manufactures of the widely used pesticide.