Yesterday, the Supreme Court ruled that only settlements that explicitly resolve liability under CERCLA trigger the contribution provisions of section 113 of CERCLA. I have previously commented on the Court’s tendency to treat CERCLA as much more straightforward and unambiguous than practitioners have understood it to be. The Court’s approach to section 113 in yesterday’s decision followed this now well-worn path. In a short, sweet, and unanimous decision,… More
Category Archives: Hazardous Waste
I hope that I am not struck down for saying this, but EPA’s guidance on doing remedial work during the COVID-19 emergency is reasonable and appropriate. At the risk of oversimplifying, it basically has two requirements:
- Consider the benefits to be obtained by performing the work, and prioritize work intended to eliminate or abate serious hazards that are imminent, such as immediate risks to indoor air or drinking water supplies;…
If you were thinking that PFAS were important, but you’ve been unsure just how big a deal they are, you need look no further than the Statewide PFAS Directive issued by the New Jersey Department of Environmental Protection. Some of my colleagues in New Jersey may correct me, but I think that the Directive may be the most wide-ranging order I’ve ever seen issued by an environmental agency. … More
Two recent cases illustrate the potential scope of, and the potential limitations on, injunctive relief in RCRA citizen suits. First up, Schmucker v. Johnson Controls.
Contamination was detected at the Johnson Controls manufacturing facility in Goshen, Indiana. In response, Johnson Controls performed substantial remediation under the auspices of the Indiana Department of Environmental Management’s Voluntary Remediation Program. Nonetheless, significant contamination remains at the site,… More
Concern about the impacts of Poly- and Perflouroalkyl Substances is extensive and growing. Without seeking to downplay the potential risks from PFAS exposure, I do think that the way we are addressing PFAS demonstrates everything that’s wrong about how we talk about, assess, and respond to environmental risk in the United States.
Exhibit 1 for my view is Senator John Barrasso, the Republican chair of the Senate Committee on Environment and Public Works. … More
Last month’s decision in Ohio v. Breen was the most blatantly, obviously, and incontrovertibly wrong Superfund decision I have ever come across. How wrong was it? Saints/Rams level wrong.
The case involved Superfund claims brought by the state of Ohio concerning a former pesticide operation. The State sued numerous people, including the current owner of property that had been contaminated as the result of the pesticide operations. … More
In the early days of Superfund, defense lawyers used to joke that all government lawyers had the same oral argument script. It was three sentences long.
Good afternoon, your honor. My name is _____ and I represent the government in this case. We win.
Lawyers in Massachusetts rightly feel that that pretty much remains the state of affairs in Massachusetts, at least for private cost recovery or property damage claims. … More
The 9th Circuit Court of Appeals has reversed a District Court decision allocating 100% of CERCLA response costs at a San Diego Superfund site to TDY Holdings, which operated an aeronautical manufacturing plant from 1939 to 1999. TDY has sought contribution from the United States, which was the source of the vast majority of TDY’s business, and which directed TDY to use certain hazardous substances,… More
In a very interesting – and extremely rare – case, Emhart Industries has successfully defended itself against a unilateral administrative order issued by EPA under CERCLA, on the ground that key decisions made by EPA were arbitrary and capricious. The decision, concerning the Centredale Manor Restoration Project Superfund Site, is worth a read for CERCLA practitioners, even though it weighs in at 108 pages.… More
Earlier this week, Scott Pruitt released the results of the Superfund Task Force he established in May. Though skeptical, I was pleased at the creation of the task force and goals he established for it. With the release of the report, my skepticism has returned.
First, the report and Pruitt’s memo about it repeat the claptrap about restoring “the Superfund program to its rightful place at the center of the agency’s core mission.” Since he keeps repeating that statement,… More
Last week, I offered less than fulsome praise of EPA Administrator Pruitt’s announcement that he was taking control of remedial decisions for big Superfund sites. Now, he’s followed up with a memorandum announcing establishment of a task force to look at ways to reform Superfund implementation. While he’s still plainly wrong in putting Superfund “at the center of the agency’s core mission,” I have to confess that I think he otherwise has pretty much hit a home run with the latest memorandum.… More
Last week, EPA Administrator Pruitt issued a memorandum requiring that all Superfund remedies estimated to cost at least $50 million be approved by the Administrator. I’m not optimistic that this will cure, or even ameliorate, what ails CERCLA.
First, the memorandum gets off on precisely the wrong foot. Administrator Pruitt states that:
The Superfund program is a vital function of the U.S.… More
I know that pointing out CERCLA’s stupidity has something of a dog bites man quality, but sometimes Superfund’s stupidity bears repeating. Today’s exhibit? New York v. Next Millenium Realty, in which Judge Feuerstein held – rightly, I am compelled to note – that New York’s natural resources damage claim was timely, because the site at issue had been added to the National Priorities List less than three years before the suit was filed.… More
A group of PRPs received an oversight cost bill pursuant to a CERCLA consent decree. (The following details are intentionally vague to protect both the innocent and the guilty.) The bill was for several hundred thousand dollars. During the year covered by the bill, the PRPs spent no money cleaning up the area of the site covered by the invoice. They spent little or no money monitoring the area of the site covered by the invoice. … More
Late last month EPA issued draft guidance on adjusting post-closure periods under RCRA. It’s not good news.
Although the Guidance is technically neutral concerning shortening or lengthening post-closure periods, let’s not kid ourselves; this is all about extending post-closure care. For how long? How does forever sound?
Why do I think that this is all about extensions? First, if anyone can give me any examples where EPA has ever decreased this type of monitoring/oversight period,… More
On Friday, EPA finally released its final rule regulating coal combustion residuals. Facility owners breathed a sigh of relief, as EPA chose to regulate under Subtitle D of RCRA, rather than under the cradle-to-grave provisions of Subtitle C. Given the extensive beneficial reuse of CCRs, EPA clearly made the right call.
This year, EPA has proposed a rule to regulate GHG emissions from existing sources, the legality of which turns, in significant part, on the meaning of a “source” under section 111(d) of the Clean Air Act. It has also proposed a rule clarifying the definition of “waters of the United States” under the Clean Water Act. Having dealt with gases and liquids, EPA has turned to solids (it’s a metaphor,… More
MassDEP has recently released for public comment draft Guidance on Vapor Intrusion. The proposed guidance would replace MassDEP’s December 2011 Interim Final Vapor Intrusion Guidance, which saw minor revisions in the spring of 2013. The guidance has undergone a substantial revision, largely to make changes that correspond to the recent regulatory reforms to the Massachusetts Contingency Plan.
The guidance provides MassDEP’s recommended technical and regulatory approaches to addressing the vapor intrusion pathway at sites contaminated with releases of oil and/or hazardous materials regulated under the MCP.… More
In an important decision yesterday, Judge Douglas Woodlock of the District of Massachusetts confirmed that CERCLA preempts local cleanup bylaws. The case involved one aspect of the cleanup of the W.R. Grace Superfund Site in Acton, Massachusetts. In 2005, EPA issued a Record of Decision requiring operation of a groundwater pump and treat system in what is known as the Northeast Area of the Site. However, EPA recognized that the contamination in the area was limited and stated in the ROD that the treatment system might be turned off in three years if certain criteria were met.… More
How Much Deference Do States Get in Entering CERCLA Consent Decrees? Probably A Lot, But Perhaps Not As Much as You Thought
In Cannons Engineering, the First Circuit Court of Appeals famously stated that, when CERCLA consent decrees arrive at the courts of appeal for review, they do so “encased in a double layer of swaddling,” because both the EPA decision to enter into the decree and the district court review of the EPA decision are entitled to significant deference. Last week, in Arizona v.… More
I Thought Redeveloping Brownfields Was a Good Idea: Apparently the Boston Globe Hasn’t Gotten the Message
In an article earlier this week, the Boston Globe reported on concerns that the Massachusetts Department of Environmental Protection is planning to weaken cleanup standards for hazardous waste sites in Massachusetts, seemingly in response to pressure from developers. The article is so wrong and the concerns are so misplaced that some response is necessary.
First, we expect MassDEP to regulate in the face of uncertainty. … More
EPA’s Groundwater Remedy Completion Strategy: Making Cleanups More Efficient Or Just Increasing PRP Costs?
Last week, EPA released a draft Groundwater Remedy Completion Strategy. The strategy is intended to provide:
a recommended step-wise plan and decision making process for evaluating remedy operation, progress and attainment of [remedial action objectives] using an updated conceptual site model, performance metrics and data derived from site-specific remedy evaluations.
I like to think that I am skeptical, not cynical. Having worked on this stuff for 25 years,… More
In State of New York v. Next Millenium Realty, decided earlier this week, the 2nd Circuit Court of Appeals confirmed the wisdom of Gilbert and Sullivan. It is very difficult to blow the statute of limitations in CERCLA cases.
The question before the court was whether New York could recover from PRPs the cost of a granulated activated carbon (GAC) system and an air stripper tower,… More
As Superfund lawyers know, the Supreme Court decision in Burlington Northern required proof of an intent to dispose hazardous substances as a prerequisite to imposition of arranger liability. While lower courts have often blissfully ignored the holdings in Supreme Court decisions under CERCLA, arranger liability seems to be one area in which the lower courts have taken the Supreme Court decision to heart.
In any event,… More
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 in the room, but several disembodied voices from EPA’s Ada, Oklahoma, lab. Insult to injury is when there are 3 or 4 representatives of EPA’s outside oversight contractor. … More
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 impossible to do such work without obtaining an appreciation for the very significant costs that bureaucracies impose.… More
Coming to a Steam Electric Generating Plant Near You in May 2014 — New Effluent Limitation Guidelines
Last Friday, EPA announced release of its draft proposal to revise the effluent guidelines and standards for the steam electric power generating industry, last revised in 1982. The proposal was in conformance with a litigation settlement with environmental groups, which also calls for a final rule by May 22, 2014.
As we noted last month, the Supreme Court has determined that logging roads are not point sources subject to stormwater regulation under the Clean Water Act. On Wednesday, in Ecological Rights Foundation v. Pacific Gas and Electric, the 9th Circuit Court of Appeals, relying in part on the decision in Decker v. Northwest Environmental Defense Center, held that releases of pentachlorophenol and other pesticides from in-place utility poles also do not constitute point source discharges. … More
On Friday, MassDEP issued the formal public comment draft of its package of regulatory reforms under the Massachusetts Contingency Plan. Overall, it’s certainly a good package, which will facilitate getting to an endpoint with reduced transaction costs, but no decrease in environmental protection. It’s not perfect (and you have until May 17, 2013 to provide comments to help make it more perfect), and it took far too long,… More
In Burlington Northern, the Supreme Court made clear that, in order to impose liability on a defendant as an “arranger” under Superfund for the sale of a product, the plaintiff must demonstrate that the defendant
must have entered into the sale of [the product] with the intention that at least a portion of the product be disposed during the transfer process.
Although courts do not seem thus far to have taken to heart the Supreme Court’s allocation discussion in Burlington Northern,… More
On Tuesday, EPA issued its “reinterpretation” of its understanding of what building wastes constitute “PCB bulk product waste” under TSCA regulations, as opposed to “PCB remediation waste.” Previously, when PCBs migrated from building products, such as caulk, the caulk would be considered PCB bulk product waste, while the underlying contaminated building material would be considered PCB remediation waste. Now the building material will also be considered PCB bulk product waste. … More
Who Knew? The National Research Council Discovers That Many Groundwater Cleanups Will Take More Than 100 Years
Daily Environment Report today noted that the National Research Council has produced a study, Alternatives for Managing the Nation’s Complex Contaminated Groundwater Sites, which assesses the scope of the groundwater contamination problem and our ability to address it. One significant takeaway from the report is that
Significant limitations with currently available remedial technologies persist that make achievement of MCLs throughout the aquifer unlikely at most complex groundwater sites in a time frame of 50-100 years.… More
EPA recently released two guidance documents relevant to Superfund practitioners. One establishes revised procedures regarding how EPA will manage negotiations with PRPs. The second updates EPA’s guidance on how it will handle Alternative Sites. To me, both have the flavor of deck chair management on the Titanic.
The RD/RA negotiation guidance has to be seen to be believed. It’s a document that seems reasonable on its face,… More
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 to deal with one specific compound (ok, family of compounds) was always foolish.… More
Indemnification Agreements Under CERCLA Do Not Affect Liability to Entities That Are Not Parties to the Agreement
Section 107(e) of CERCLA provides that
No indemnification, hold harmless, or similar agreement or conveyance shall be effective to transfer from the owner or operator of any vessel or facility or from any person who may be liable for a release or threat of release under this section, to any other person the liability imposed under this section. Nothing in this subsection shall bar any agreement to insure,… More
More Evidence That the Government No Longer Automatically Wins Superfund Cases: New Jersey Requires Proof of a Nexus Between a Discharge and Response Costs
As I have previously noted, government attorneys’ traditional approach to litigating Superfund cases has been to announce that they represent the government and that they therefore win. There was hope, following the Supreme Court’s decision in Burlington Northern, that those days were nearing an end.
It is clear to me, following too many cases after Burlington Northern,… More
An article in the New York Times earlier this week reported on EPA’s attempts under the Superfund program to address contamination in water bodies, such as rivers, lakes and harbors. Although the article acknowledges that these water body sites are technically challenging, it does not remotely capture the tortured regulatory history of these sites or the dubious remedial approach that EPA is now pursuing. It is not an exaggeration to say that some of the most notorious Superfund failures involve water body sites.… More
What’s the Future for Multi-Day Fines in Environmental Criminal Cases? The Supreme Court Rules That Juries Must Decide the Facts Supporting the Fines
The Supreme Court ruled today, in Southern Union v. United States, that juries must decide facts supporting the imposition of criminal fines. To this non-criminal lawyer (in more ways than one, I hope), the decision did not seem particularly difficult in light of Apprendi v. New Jersey, but that doesn’t mean that the decision won’t be significant in some environmental cases.… More
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.
Arguments about liability for the sale of “usable wastes” are as old as Superfund. The fact patterns involving the sale of usable wastes can be varied; however, the cases seem to be governed by the following simple but never explicitly stated rule: a party will be held liable if it sells a waste that cannot be used or won’t be used as delivered without first causing the release of a hazardous substance.… More
According to a report in yesterday’s Greenwire, President Obama’s proposed budget would reduce Superfund spending by 6%, from $565 million to $532 million. I still don’t understand why Obama, particularly with Cass Sunstein still at OMB, hasn’t turned this problem into an opportunity. I know I’ve flogged this one before, but a significant part of the explanation for the size of the Superfund budget is related to CERCLA’s status as the last bastion of command and control regulation. Everyone who practices in this area could provide endless examples of the almost unbelievable extent of micromanaging indulged in by EPA and its consultants. Even where EPA is recovering oversight costs,… More
Last week, MassDEP finally issued its long-awaited vapor intrusion guidance. Including appendices, it is 148 pages. There is a separate 52-page response to comments on the draft guidance. MassDEP has certainly learned that guidance must at least be described as guidance. The disclaimer runs a full page, and includes the following text:
MassDEP generally does not intend the guidance to be overly prescriptive.… More
In New York State Superfund Coalition, Inc., v. New York State Department of Environmental Conservation, the highest court in New York recently put its own gloss on the long-standing environmental issue of “How Clean is Clean”. There, the court held that, even though liability for cleanup under New York’s state Superfund statute is triggered when there is a “significant threat” to the environment, the state has authority to promulgate regulations requiring cleanup beyond what would be necessary to eliminate that significant threat.… More
Greenpeace Critiques Apparel Sector Companies for Failing to Manage Water Contamination by Suppliers
Some of the world’s most well-known apparel companies have come under criticism from Greenpeace for not sufficiently monitoring and limiting industrial wastewater discharges by suppliers. In a new report called “Dirty Laundry“, Greenpeace highlights the wastewater discharges from two major manufacturers in China that supply products to a range of major brands — including Adidas, Bauer Hockey, Calvin Klein, Converse, Lacoste,… More
As much as I’ve always found EPA’s use of unilateral administrative orders under Section 106 of CERCLA to be offensive, I still expected EPA’s authority to withstand challenge. As I noted previously, not every law that is unfair is unconstitutional. At least for now, the issue has probably been laid to rest. Yesterday, the Supreme Court denied GE’s petition for certiorari seeking to appeal the D.C.… More
Vapor Intrusion and the National Priorities List: Why Should the Biggest Superfund Problem Not Be Regulated Under Superfund?
As I have previously mentioned, EPA is considering including criteria related to vapor intrusion (VI) in the hazard ranking system scoring used to determine which sites should be added to the National Priorities List. As I noted when this first became news, it’s pretty much an obvious step for EPA to take. These are precisely the types of sites on which EPA should be focusing. At a certain level,… More
Recently, I expressed concern that District Courts, which traditionally have never seen a CERCLA plaintiff they didn’t like, would ignore the Supreme Court’s Burlington Northern decision – at least until there is another Supreme Court decision affirming that Supremes really meant the two-part holding in Burlington Northern: (1) divisibility isn’t that hard and (2) parties aren’t liable as arrangers unless they actually intended to dispose of hazardous material. … More
Toto, I’ve a Feeling We’re Not in Massachusetts Anymore: Exceeding a Cleanup Standard Is Not Necessarily An Imminent Hazard
In an interesting decision issued earlier this month, Judge Lewis Babcock of the District of Colorado ruled, in County of La Plata v. Brown Group Retail, that detection of contamination at levels exceeding state cleanup standards does not, by itself constitute an imminent and substantial endangerment under RCRA. I think that Judge Babcock is correct, but I can’t help but feel that the decision might be different in the blue state of Massachusetts. I was particularly taken by Judge Babcock’s description of the nature and purpose of state regulatory standards:
Regulatory screening levels,… More
In late 2009, Judge Griesbach ruled, in Appleton Papers v. George A. Whiting Paper, that parties who were significantly more “blameworthy” than others were not entitled to contribution from the less blameworthy parties. Last week, Judge Griesbach ruled on the cross-contribution motions from the defendants.
The defendants took a simple view. If the plaintiffs are not entitled to contribution from the defendants,… More
Vapor intrusion is the issue de jour at federal and state Superfund sites. On the federal side, EPA announced in January that it was considering adding vapor intrusion criteria to its calculation of hazard ranking scores. Frankly, as a concept, it’s hard to dispute. In fact, aside from when actual public water supplies are contaminated, indoor air is probably about the only risk associated with Superfund sites that we should care about. Every analysis EPA has ever done has shown that risks associated with Superfund sites are otherwise overestimated and it is not a cost-effective place to be putting environmental protection dollars. The question of course is how to go about regulating indoor air.… More
A Man’s Home (Or Mall Or Other Business) May Be His Castle — But He Still Has to Provide Access When Contamination Is At Issue
Two recent decision illustrate that PRPs do hold some cards in hazardous waste litigation, particularly if they are willing to be aggressive in investigating the contamination. Both cases demonstrate that “victims” or bystanders can face serious consequences if they do not cooperate with the investigation.
It may be an apocryphal story, but my understanding as to why so many small municipal landfills in New Hampshire ended up on the NPL is that some bright light in the Granite State thought that Superfund was a public works program and that the fund would pay for the landfill closures. The result? Small towns became PRPs, responsible for Superfund response costs which, in some cases, approximated their annual municipal budget.… More
How Much Circumstantial Evidence Is Enough To Establish Liability? More Than Just Proximity and a Bad Name
Sometimes, good lawyering does matter. When DVL found PCBs on its property in Fort Edward, New York, and when it looked up and realized that GE had operated a manufacturing facility which utilized PCBs “almost adjacent” to DVL’s property, DVL and its attorneys may have thought that they had a slam dunk case on liability. Not so fast. Last week, in DVL v. General Electric, Judge Lawrence Kahn awarded GE summary judgment on liability,… More
As the holiday approaches, I am particularly thankful that I am not counsel to the Washington State DOT in United States v. Washington State DOT, a case that continues to make me want to take EPA, DOJ, and United States District Judge Robert Bryan by the neck and ask them what the heck are they thinking.
As Superfund practitioners know, federal NPL sites are generally settled on the basis that the PRPs will first attain interim cleanup levels, though final cleanup levels are not determined until EPA is actually ready to issue its certification of completion of the remedy. Moreover, EPA insists that, should any ARARs change during the course of the cleanup, whatever standards are in effect at the time of site closure will be applied.… More
One of the first lessons I learned as a summer associate, more years ago than I care to remember, is that the probability of a successful estoppel claim against the government is approximately the same as the probability that there is a Santa Claus. After the recent decision from the District of New Jersey in FMC Corporation v. American Cyanamid, the probability of a successful estoppel claim may still be low,… More
My partner Robby Sanoff blogged last week about the “Illusion of Finality in CERCLA.” His post addressed City of Emeryville v. Sherwin-Williams, in which the 9th Circuit Court of Appeals held that a person who was not a party to a prior settlement could bring a contribution claim against such a settling party, at least where the new claim involved contamination at a downgradient property,… More
In City of Emeryville v. The Sherwin-Williams Company, the Ninth Circuit recently underscored that CERCLA settlements can be a risky business that don’t always produce finality, particularly when neither the United States nor a state is a party.
The Ninth Circuit decision grew out of a federal court action by the City of Emeryville involving contamination at a manufacturing facility that had been operated by Sherwin-Williams. Sherwin-Williams settled that suit and obtained what it thought was broad protection against contribution claims based on contamination “at,… More
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 – but only in limited circumstances.
There are only two permissible answers to this question:
- I don’t know.
I was reminded of this reality in reading the decision issued earlier this month in Solutia v. McWane, in which Chief Magistrate Judge Greene of the Northern District of Alabama held that a party which incurs response costs pursuant to a consent decree or administrative order may not bring an action for cost recovery under § 107 of CERCLA and is instead limited to a contribution action under § 113 of CERCLA.… More
Product stewardship is definitely in vogue. The Daily Environment Report has just noted that the United State Conference of Mayors has adopted a resolution calling for “Extended Producer Responsibility For Products.” I understand the arguments in favor of product stewardship. From an economic point of view, the disposal costs associated with products and product packaging can be seen as an externality. Internalizing those costs would give manufacturers and distributors incentives to minimize those costs,… More
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 terms of the actual risks posed by Superfund sites, we devote too many of our environmental protection dollars to Superfund sites,… More
When the Burlington Northern decision was first announced, I concluded that “never has the Supreme Court done so much by doing so little.” On May 5, Judge John Mendez, of he Eastern District of California, proved me at least half right. In United States v. Iron Mountain Mines, joint and several liability was imposed on the defendants in 2002. The 2002 decision stated that “given the nature of pollution at the site,… More
To Be Hazardous or Not to Be Hazardous: EPA Floats Two Options for Regulating Coal Combustion Residuals
Environmentalists have been pushing for years to overturn the Bevill Amendment and get coal combustion residuals (CCR) regulated as a hazardous waste. The failure of an impoundment at the TVA facility in Kingston, Tennessee, in 2008 almost guaranteed that EPA would do something to regulate CCR. Like Hamlet, however, EPA seems to be having trouble making up its mind. Earlier this week, EPA announced two different potential regulatory approaches,… More
One of the outstanding questions following the Supreme Court decisions in Aviall and Atlantic Research was whether a party which had entered into a consent decree with the United States and incurred direct response costs as a result could bring an action for cost recovery under § 107 of CERCLA or whether such a settling party would instead have a contribution action under § 113. The problem facing practitioners and the courts following Atlantic Research was that the Supreme Court seemed to have backed itself into a corner. By focusing its analysis of § 113 so narrowly on the traditional common law understanding of contribution,… More
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.”
Last week, Judge William Griesbach, of the Federal District Court for the Eastern District of Wisconsin, issued an important Superfund contribution decision, which shows just how much equitable discretion judges have in resolving contribution claims. In Appleton Papers v. George Whiting Paper, Judge Griesbach ruled, on summary judgment, that one equitable factor, knowledge of the potential environmental harm caused by PCBs, trumped all others,… More
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 the decision is correct, but if it is the law, then property managers would be wise to consider carefully what responsibilities they are willing to assume and what sort of indemnification agreements may be required with the actual property owners.… More
Late last week, Elliott Gilberg, Acting Director of EPA’s Office of Site Remediation Enforcement (OSRE) issued an Interim Policy on Managing the Duration of Remedial Design/Remedial Action Negotiations. Members of the regulated community may not be surprised by the contents of the memo, but they certainly will not be pleased. In brief, the memorandum fundamentally makes two points:
EPA wants to shorten the duration of RD/RA negotiation
EPA is going to use the heavy hammer of unilateral administrative orders,… More
As a confirmed optimist and believer in technology, I’ve long thought that we can meet the challenge posed by global climate change – as long as we implement the right policies to provide incentives to develop the necessary technologies. Having the wide engineering knowledge that being a lawyer – as well as one of six political science graduates from MIT my year – provides, I have assumed that nanotechnology would play a substantial part in whatever the ultimate solution turns out to be.… More
In an interesting case, the Court of Appeals for the First Circuit this week vacated most of a preliminary injunction issued by a federal judge in Puerto Rico, because, the Court concluded, the lower court had wrongly, and without doing so explicitly, converted a PI hearing into a hearing on the merits.
For those of you who cannot get enough of Superfund, I spoke at a Boston Bar Association panel on this subject yesterday about the implications of the Supreme Court’s Burlington Northern decision. Thanks to EPA Region I and Joanna Jerison, head of the Region I Superfund Legal Office, for being willing to speak on so obviously sore a subject. And thanks to Craig Campbell for participating on the panel as well.… More
One more note on the Burlington Northern decision. A client of mine has already noted that one impact of the decision will be to result in more litigation over divisibility, which will be good for private lawyers (ouch!). She’s right, as my clients always are, but she shouldn’t be.
Litigation should only increase if EPA does not adjust its settlement demands. If EPA responds appropriately, and makes demands which reflect a fair resolution of a divisible liability,… More
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 years after the acid rain provisions of the Clean Air Act ushered in wide-spread acceptance of the use of market mechanisms to achieve environmental protection goals and the state of Massachusetts successfully privatized its state Superfund program,… More
Life After Atlantic Research: The Second Circuit Court of Appeals Holds that Response Costs Incurred Pursuant to a Consent Decree Are Recoverable Under Section 107 Of CERCLA
For those following developments in Superfund cost recovery and contribution case law after the Atlantic Research decision, it seemed worth noting that the Second Circuit Court of Appeals recently held, in W.R. Grace & Co. – Conn. v. Zotos International, Inc., that a party who incurs response costs pursuant to a state consent order has a right to bring an action to recover those response costs under § 107 of CERCLA.… More
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 New York earlier this month established at least some outer parameters for this seemingly boundless phrase. In Scotchtown Holdings,… More
“Expert Testimony” Evidence Proof
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 to a report in yesterday’s Greenwire, Congressional hearings this week may include a discussion regarding whether coal ash should continue to be exempt from regulation as a hazardous waste under RCRA
The exemption of coal ash is critical to coal-fired power plants. … More
Private Contribution and Cost Recovery Claims Under CERCLA: The State of the Law after Atlantic Research
For those of you who haven’t been keeping up with the law on private cost recovery and contribution claims under CERCLA, following the decision in Atlantic Research, I recently participated in a panel discussion on the issue. A copy of my presentation can be found here.
The most contentious issue during the discussion was whether private parties who have settled with the government and performed direct cleanups –… More
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 with a college or university.
The Rule will append a new subpart,… More
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 Southern District of Illinois found the owner of a petroleum pipeline strictly liable under RCRA for pipeline leaks that contaminated soil and groundwater decades prior,… More
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, but left the old system, including piping, in place. The buyer sought to make the seller pay for the asbestos abatement on the ground that the seller has disposed of the old equipment by abandoning it in place when it installed the new system.… More
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 hazardous waste if it is first determined to be a solid waste as defined in Section 261.2 of the RCRA regulations. Previously,… More
As pretty much everyone knows, in order to improve its prospects for passage, the Senate added certain tax provisions to the financial bailout bill – also know as the Emergency Economic Stabilization Act of 2008, or H.R. 1424 – enacted earlier this month. One of the provisions included in the EESA was an extension of the brownfields tax incentive.
The brownfields tax incentive, originally enacted as part of the Taxpayer Relief Act of 1997,… More