On Monday, EPA issued an Interpretive Statement concluding that point source discharges to groundwater are never subject to NPDES permitting requirements. EPA did a good job marshalling its arguments – much better than this EPA has done in a number of similar situations.
Category Archives: RCRA
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
Are Discharges to Groundwater Potentially Subject to the Clean Water Act? A Circuit Split Tees It Up.
The Sixth Circuit ruled earlier this week that discharges to groundwater are not subject to Clean Water Act jurisdiction. We now have the requisite circuit split, opening the possibility of Supreme Court review. For those who might still be open-minded, I commend both the majority and dissenting opinions in the 6th Circuit; they are each as clear and as persuasive as they could be.
Although I have long thought that it does not make sense to regulate discharges to groundwater under the CWA,… More
On Wednesday, the 4th Circuit Court of Appeals reversed a District Court ruling and rejected the Sierra Club’s citizen suit against Virginia Electric Power alleging that releases of arsenic from a coal ash landfill and settling ponds at its Chesapeake Energy Center power plant violated the Clean Water Act and the plant’s NPDES permit. Notably, the issue that most concerned me at the time of the District Court opinion,… More
As an MIT grad and loyal resident (Go Sox!), I’m always happy to see stories about Massachusetts’ role in the innovation economy. Last week, news arrived of more innovation in Massachusetts – this time on the legal front. CLF sued Exxon Mobil for not adapting its Everett storage terminal to harden it against the effects of climate change.
According to the Daily Environment Report (subscription required), EPA is going to change the name of the Office of Solid Waste and Emergency Response to the Office of Land and Emergency Management. What a grand name; surely it is an improvement.
I don’t think that this quite rises to the level of rearranging deck chairs on the Titanic (though I certainly have clients who would not object if OSWER sank without a trace),… More
Earlier this week, the D.C. Circuit Court of Appeals rejected both industry and environmental group petitions challenging EPA’s determination of what is a solid waste in the context of Clean Air Act standards for incinerators and other combustion units. It wasn’t actually a difficult case, but it does provide a lesson for Congress. When the technical nature of EPA’s decisions was layered on top of the fundamental deference given EPA’s interpretation of the statute under Chevron,… 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
In a potentially significant opinion last week, in Little Hocking Water Association v. DuPont, Judge Algenon Marbley gave hope to citizen plaintiffs everywhere, with a remarkably expansive reading of the imminent and substantial endangerment language in RCRA’s citizen suit provision. The decision covers a lot of ground, and is well worth reading (and, in fairness, Judge Marbley did reject some of plaintiffs’ claims).
The most significant holding was that DuPont’s emissions of perflourooctanoic acid,… 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.
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
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
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
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.
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 Square, LLC that the Constitution bars the application of RCRA’s citizen suit provision in the case of a local groundwater contamination plume:
The central issue in this case is an alleged contamination plume located in Las Vegas,… More
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) to a toll manufacturer who merely directed the production of a useful product with knowledge that there would be hazardous waste by-products (Aceto).… 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
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.
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
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
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.”
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
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.
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.
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
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, she confirmed that EPA will indeed then promulgate regulations designed to prevent future spills.… 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
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
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