Environmental Law Explored: A Podcast SEERies

Chuck Elkins discusses his career at the EPA, where he held 10 different senior management positions between 1971 and 1995, with JD Howard, an associate at Morris, Manning, & Martin, LLP and past member of the Section’s Leadership Development Program. This podcast was recorded in late 2020.

In this episode on the global pollution crisis of marine debris, Joan Bondareff and Martha McCoy discuss the scope, sources, and impacts of the marine debris problem and measures to address it. The episode covers ongoing and emerging federal, nonprofit, community, and international action to prevent and respond to marine debris, as well as recent and proposed legislation addressing plastic pollution and marine debris.

Marine debris, consisting of huge amounts of materials such as plastics, metals, and rubber disposed of or abandoned into the marine environment, is a vast pollution problem facing the ocean and waterways. Marine debris is abundant and extensive, and it causes adverse impacts on wildlife, the environment, the economy, and navigation safety. Plastic pollution in the oceans and waterways poses a particular concern; plastic does not biodegrade in any meaningful amount, but rather, wave energy and sunlight can break plastic down into microplastic fragments, which may carry harmful chemicals and additives, such as endocrine disruptors. Animals consume microplastics in the environment and humans consume microplastics through sources such as drinking water and seafood; this exposure to microplastics may lead to health concerns. Key developments over the last several years in legislation, international action, and policy approaches illustrate the ongoing and emerging trends in the multi-pronged approach by federal agencies, nonprofits, and other organizations to target the sources and impacts of marine debris and further action is needed to address this growing crisis.

The speakers, Joan Bondareff and Martha McCoy, discuss the scope, sources and impacts of marine debris and will address federal, nonprofit, community, and international action to prevent and respond to the problem of marine debris. The speakers also discuss recent and proposed legislation addressing plastic pollution and marine debris.

Joan Bondareff is Maritime Counsel at Blank Rome LLP and former Senior Counsel to the House Committee on Merchant Marine and Fisheries, and author of several articles on the subject including https://safepassageblankrome.com/2020/12/16/marine-plastic-pollution/. Martha McCoy is author of an article in the Spring 2021 Natural Resources & Environment publication titled "Marine Debris: the U.S. Federal Role in a Local and Global Problem," and in her role as an Attorney-Advisor with the National Oceanic and Atmospheric Administration (NOAA) Office of General Counsel, she provides legal counsel to, among others, NOAA’s Marine Debris Program. (Disclaimer: the podcast will express Martha McCoy's personal views and not the official views or position of NOAA or the Department of Commerce).

On this podcast, you'll hear Peter Wright, Special Counsel to US EPA Administrator Andrew Wheeler, and Planning Chair Ilene Munk discussing the upcoming Master Class on Complex Environmental Liability Resolution coming up in June in Atlanta, GA.

Don't miss out and register for the conference by visiting ambar.org/cercla today!

In this podcast, David Rieser (K&L Gates) and Amy Edwards (Holland & Knight) will discuss the challenges and uncertainties of incorporating PFAS compounds into Phase I environmental assessments, including how to detect their presence and manage associated risks in real estate transactions.

Now that EPA has identified two PFAS compounds as hazardous substances, ASTM’s most recent Phase I methodology (ASTM E-1527-21) allows environmental professionals to include those PFAS compounds as part of their Phase I assessment. Yet it’s not clear how they determine whether PFAS are present or likely present at a property, let alone whether that presence is the result of a past or threatened release.

On the one hand, PFAS can be associated with certain locations, such as airports which used firefighting foam and certain industries such as manufacturers producing non-stick material and products. At the same time, PFAS have been found in surprising places with no clearly identifiable sources, such as Antarctica. While Phase Is are always more art than science, the level of uncertainty around PFAS makes the process especially fraught. Buyers and sellers will have to decide whether this is an issue they want addressed and consultants will be concerned about their risks of addressing or not addressing PFAS. These choices may affect the ability of the buyer to assert an innocent landowner or bona fide purchaser defense to a CERCLA claim regarding the costs to address PFAS. Unscrupulous parties may look to take advantage of the uncertainty to obtain favorable leverage and unscrupulous consultants may use the uncertainty to sell unnecessary services.

In short, this is a good time to hear from experts in Phase I requirements and nuances. Amy Edwards has participated in the ASTM Phase I process from the beginning, has a wealth of environmental transactional experience and has read more Phase Is than she cares to admit. David Rieser is an experienced environmental attorney and has written extensively on transactional issues. Together they intend to talk through the PFAS issues in Phase Is in the hope of finding useful approaches to deal with these thorny issues.