Category Archives: RCRA

Which Is Worse? EPA Oversight or Citizen Oversight?

Everyone who represents PRPs in Superfund settlements has his or her own horror stories regarding the scope of EPA’s oversight cost claims.  We all know that oversight costs can end up as an appreciable percentage of total site costs.  We’ve all cringed to go to meetings with EPA and see not just multiple EPA employees […]

I Believe in Environmental Regulation, But….

As readers of this blog know, I believe in governmental environmental regulation.  We have a complicated world and it is not surprising that many activities, including those generating greenhouse gases, cause negative externalities.  At the same time, however, I have spent more than 25 years representing regulated entities in negotiations with government regulators and it […]

Is EPA Considering Allowing PCB Cleanups to Proceed Under RCRA, Rather Than TSCA? I’ll Believe It When I See It (And I Hope I See It)

One headline in today’s Daily Environment Report stated that “EPA Considers PCB Regulatory Reform Amid State Regulator Criticism of Program.” Even my advanced sarcasm skills failed me on reading this. I’ll therefore settle for “about bloody time.” The original fault certainly lies with Congress, not EPA. The notion that Congress needed a separate statutory regime […]

Wondering About the Status of EPA’s CCR Rule? So Are 11 Environmental Groups

I have had a number of clients ask me recently about the status of EPA’s efforts to regulate coal combustion residuals under RCRA. It turns out that some environmental groups have been asking themselves the same question. Being environmental groups, however, they did more than ask about it. They sued. As most readers know, EPA published two […]

RCRA Citizen Suits Are Still Constitutional

2012 is shaping up to be the Year of the Commerce Clause. Not only is the Commerce Clause at the center of the Supreme Court ‘s impending review of the Affordable Care Act later this spring; it is also at the heart of a statement made by a federal district judge in Voggenthaler v. Maryland […]

The Shrinking of Environmental Liability

Environmental liability has always been a dish best served in as many slices as possible. Hence, CERCLA jurisprudence in its first two decades was characterized by a judicial willingness to entertain ever more creative theories to extend environmental liability to new classes of parties, such as a developer who unknowingly moved contaminated soil (Tanglewood East) […]

You Want to Preclude a Citizens’ Suit? Pick Your Poison

When clients are threatened with citizen suits – and particularly when the threatened litigation involves a matter where EPA or a state regulatory agency is heavily involved, the clients always want to know why they can’t somehow get rid of the citizen suit, given that EPA is on the case. The answer is that they can […]

Just What We Need: More Community Engagement in Superfund Sites

Last week, EPA’s Office of Solid Waste and Emergency Response announced release of its Community Engagement Implementation Plan. Who could be against community engagement? It’s as American as apple pie. It’s environmental justice. It’s community input into decisions that affect the community. It’s transparency and open decision-making. Call me a curmudgeon, but I’m against it. Study after study shows that, in […]

Time For Another Rant: Precautionary Principle Edition

As I have previously noted, Cass Sunstein, now head of the Office of Information and Regulatory Affairs at OMB under Obama, has called the precautionary principle “deeply incoherent.” Why? Because, as Sunstein notes, “costly precautions inevitably create risks.” I hope that Sunstein is as troubled as I am by the news, reported recently by Inside EPA, that […]

Superfund Liability: Owner? Operator? Property Manager?

In an interesting decision issued a few weeks ago, a District Court in Georgia held that a property manager at a strip mall could not be held liable as an owner of a facility under CERCLA. However, the court held that the property manager could be liable as an operator of the facility. I don’t think that […]

Imminent and Substantial Endangerment Under RCRA — I Know It When I See It

Justice Potter Stewart famously said, with respect to obscenity, that “I know it when I see it.” I fear that the test for what constitutes an imminent and substantial endangerment under RCRA is no clearer than Justice Stewart’s subjective test regarding obscenity. This week, in a decision that is good news for RCRA defendants, Judge Illlston, […]

A Rant Against Superfund

As some of my clients know all too well, I’ve been spending a lot of time on some Superfund matters recently. Although I can’t remember a period when I didn’t have at least one moderately active Superfund case, significant immersion in complex remedial decision-making and negotiations provides an unwelcome reminder just how flawed CERCLA is. Almost 20 […]

Regulation of Coal Ash: The Ball’s In EPA’s Court For Now

Although it appeared initially as though Congress might be the first to move towards greater regulation of coal ash following the TVA spill, EPA has seized the initiative. Yesterday, Administrator Jackson announced a two-pronged initiative. First, EPA has issued information requests to facilities maintaining coal ash impoundments in order to gather information necessary to support new regulations. Second, […]

Imminent and Substantial Endangerment Under RCRA: Not Everything Qualifies

Attorneys who have litigated citizen suits under RCRA have often wondered if there is any possible risk that would not qualify as an “imminent and substantial endangerment,” thus subjecting the person who “contributed” to such endangerment to liability under RCRA. In Scotchtown Holdings v. Town of Goshen, the District Court for the Southern District of […]

Regulatory Fallout from the TVA Coal Ash Release

The magnitude of the recent release of coal ash from the TVA dam is hard to fathom, though the pictures certainly give some sense of its magnitude. Now, as regulators and Congress attempt to get their collective arms around the import of the release, some of the regulatory implications of the release are starting to emerge. According […]

EPA Looks to Make Life Under RCRA Easier For Educational Institutions

The Environmental Protection Agency (EPA) is set to publish a Final Rule creating an optional, alternative set of generator requirements for hazardous waste generated or accumulated in laboratories at “eligible academic entities”: (1) colleges and universities; (2) non-profit research institutes owned or affiliated with a college or university; or (3) teaching hospitals owned or affiliated […]

Indoor Air: New Pathways to Potential Liability?

Two recent federal decisions may aid regulators and activists seeking to hold companies liable under the Resource Conservation & Recovery Act (RCRA) for historical soil or groundwater contamination that could migrate as vapor and contaminate indoor air. On July 28, 2008, in United States v. Apex Oil Company, Inc., the U.S. District Court for the […]

Say It Loud, Say It Clear; The Inside of a Building Is NOT the Environment

In a recent decision, the 7th Circuit Court of Appeals confirmed that neither CERCLA nor RCRA provide convenient ways for the buyer of a building containing asbestos to finance the abatement of that asbestos. In Sycamore Industrial Park Associates v. Ericsson, the seller of the building replaced the old heating equipment shortly prior to sale, […]

Definition of Solid Waste Revised to Encourage Recycling of Hazardous Secondary Materials

On October 7, 2008, the Environmental Protection Agency (EPA) issued a new final rule (the “Rule”) that exempts certain recycled hazardous secondary materials from RCRA’s “cradle to the grave” regulatory system. Hazardous waste is regulated under Subtitle C of the Resource Conservation and Recovery Act (RCRA). A hazardous secondary material can only be classified as a […]