Last week, Inside EPA (subscription required) reported that EPA will reopen CERCLA cleanups due to the presence of PFAS on a case-by-case basis. The article reported on the gnashing of teeth among the regulated community at the prospect of seeing a significant number of sites reopened. As a card-carrying member of the regulated community, I am prone to teeth-gnashing as well. And I agree with my friend Jeff Porter,… More
Category Archives: Settlements
Tucked away in the recesses of the Inflation Reduction Act is a provision that reminds everyone why they love Superfund so much. On its face, it’s simply an incentive for renewable energy development, giving an adder to the amount of the investment tax credit (ITC) or production tax credit (PTC) to which certain renewable energy projects would otherwise be entitled, if they are located in an “energy community”. … More
Last week, the First Circuit Court of Appeals ruled that a person who enters into an administrative settlement with a state is immune from citizen suits seeking civil penalties, but not immune from suits for declaratory or injunctive relief. I don’t think that the decision would even have been newsworthy, if it hadn’t required that the Court overrule its 1991 decision in North and South Rivers Watershed Ass’n v.… More
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
On Monday, Judge David Faber found Bluestone Coal Corporation liable for 1,904 days of violations of its discharge permit at the Red Fox Surface Mine. All of the violations related to excessive discharges of selenium. Bluestone’s defense, rejected for a second time by Judge Faber, was that the existence of a consent decree precluded the separate action for enforcement of the permit. However, the permit and its specific discharge limit for selenium only came into effect after the entry of the consent decree.… More
It’s Still Good to Be King; SCOTUS Continues to Interpret CERCLA In Ways Unrecognizable to Practitioners
I have previously discussed how nice it must be for Supreme Court justices to reach judicial decisions from on high, without getting their collective hands dirty worrying about the practical consequences of their decisions. The same has always been true with respect to SCOTUS decisions concerning CERCLA, which has seemed far simpler to SCOTUS than to us poor lawyers who have to actually make it work.
Exhibit A for this argument is the latest SCOTUS Superfund decision. … More
Settling Federal Environmental Enforcement Claims — Some Payments to Third Parties May Be Allowed (But Not Many)
Earlier this month, Jeffrey Wood, Acting Assistant Attorney General for Environment and Natural Resources issued a memorandum expanding on Jeff Sessions’ memorandum of June 5, 2017, generally barring payments to third parties as part of government settlements. (And, yes, I know there should be another “s” after the apostrophe, but I’m hereby announcing a new rule; if I can’t pronounce it, I’m not writing it!) The Wood Memorandum affirms – of course – the June 5 Memorandum,… More
EPA Administrator Scott Pruitt today issued a Directive prohibiting the practice of “sue and settle.” He also issued a Memorandum to senior staff explaining in more detail some of the concerns about “sue and settle.” They are two very strange documents.
As to the substance of how EPA will handle future citizen suit claims, there are some specific concrete steps which individuals and groups across the political spectrum actually can support. … More
In 2011, the National Parks Conservation Association sued EPA for failure to enforce the regional haze requirements of the Clean Air Act. EPA and the NPCA settled in 2012, establishing a schedule by when SIPs or FIPs had to be promulgated. The only state remaining is Texas. After several extensions, EPA is required to approve a SIP or promulgate a FIP by September 9, 2017. You can hear the clock ticking.… More
Earlier this week, a divided 9th Circuit Court of Appeals affirmed entry of a consent decree between the Sierra Club and EPA, resolving litigation over EPA’s failure to promulgate attainment designations for the sulfur dioxide NAAQS under the Clean Air Act.
I would have thought that entry of the settlement would be fairly straightforward. EPA misses deadlines with some regularity. Persons sue over such failures with some regularity. … More
Earlier this week, Attorney General Sessions issued a brief memorandum barring DOJ from entering into any civil or criminal settlement that would provide for a payment by a defendant to any non-governmental person that is not a party to the dispute.
Where does this leave the common practice of mitigating enforcement penalties through the implementation of Supplemental Environmental Projects? Hanging on by a thread, I’d say.… More
I will confess that I do enjoy being correct. In 2014, the 9th Circuit Court of Appeals refused to defer to a state agency determination of the procedural and substantive fairness of a CERCLA consent decree. Various parties and commentators promptly began, if I may say so, to run around like chickens with their heads cut off. However, I remained calm. I stated then:
I’m assuming that,… More
In an interesting, but not really difficult, decision on Tuesday, the D.C. Circuit Court of Appeals found that the National Association of Home Builders did not have standing to challenge a consent decree pursuant to which the Fish and Wildlife Service agreed to a schedule for moving 251 species from “warranted-but-precluded” status under the ESA to either warranted or unwarranted. The FWS, short of resources to make final listing decisions under the ESA,… More
Last week, Judge John Copenhaver refused to allow a motion by the United States to enter a consent decree that would have resolved government claims against DuPont concerning alleged violations of the Clean Air Act, CERCLA, and EPCRA at its facility in Belle, West Virginia. The motion was unopposed.
Instead, Judge Copenhaver ordered the United States to file a revised memorandum in support and he specifically directed that the memorandum address certain issues that concerned him,… More
Allocation of liability under CERCLA can get messy. One particularly complex issue arises in a private cost recovery action where some but not all the PRPs have settled with the private party. In contrast to a government cost recovery action, where CERCLA Section 113(f)(2) expressly provides that the response costs sought to be recovered by the government are reduced dollar-for-dollar by any settlement proceeds, CERCLA is silent with respect to the treatment of settlements in private party CERCLA claims.… More
On Sunday, the Boston Globe had a fairly comprehensive look at the causes of the current failings of the MBTA. Interesting reading for those who like to belabor the obvious. The short version? Lack of political will and combined with a typical willingness to spend money we didn’t have.
As an environmental lawyer, I found the article interesting, because a discussion of the origin of the Big Dig transit commitments – a story I know pretty well – for the first time turned on a light bulb for me. … 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
Before a Superfund settlement becomes enforceable, it must be reviewed by a federal court to confirm that it is fair, reasonable, and consistent with CERCLA’s objectives. This judicial review is at the heart of CERCLA’s settlement process. Since Superfund settlements provide broad protection to settling parties, judicial approval provides the necessary and exclusive procedural mechanism to vouchsafe that a proposed settlement is in the interest of the public as well as all other parties.… 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
Dispatches From the “Sue and Settle” Front: Trade Groups Do Not Have Standing to Challenge Settlements Regarding ESA Listing Procedures
Last week, a federal court, for the fourth time, found that property owners’ groups do not have standing to challenge a settlement between the administration and conservation groups under which the administration agreed to make listing decisions under the Endangered Species Act on more the 250 candidate species by 2016. Judge Emmet Sullivan, who entered the original settlements, ruled that settlements imposing procedural deadlines on the Fish and Wildlife Service did not cause any redressable injuries to the plaintiffs.… More
Late last year I blogged on the dubious decision by the Seventh Circuit in Bernstein v. Blankert which held that a settling CERCLA party did not resolve its liability to the government until it had performed all of its obligations under the Consent Decree. While that decision enabled the settling party to get around a statute of limitations problem in bringing a claim against the real polluting party, … More
Sometimes you read a decision and it’s hard to understand how there really were two plausible sides to the dispute. Arrowood Indemnity Company v The Lubrizol Corporation is one such a decision. There, a policyholder sold back its liability coverage for claims “arising out of” certain named environmental sites. When the policyholder subsequently received a PRP notice letter for a site that included a property that had allegedly been contaminated by waste migrating from one of the named environmental sites,… More