Tagged: USEPA

U.S. Supreme Court Remands Clean Water Act Case to the Fourth Circuit for Further Consideration in Light of “Functional Equivalent” Test from County of Maui

U.S. Supreme Court Remands Clean Water Act Case to the Fourth Circuit for Further Consideration in Light of “Functional Equivalent” Test from County of Maui

The effects of the recent U.S. Supreme Court decision in County of Maui v. Hawaii Wildlife Fund have begun to ripple out. In County of Maui, the Court held that the Clean Water Act requires a permit where there is a “functional equivalent of a direct discharge” from a “point source” into “navigable waters.” The Court acknowledged the “difficulty with this approach” in dealing with the “middle instances,” and provided a non-exhaustive list of seven factors that may be considered in determining whether a “functional equivalent of a direct discharge” exists in a particular circumstance. “Time and distance will be the most important factors in most cases, but not necessarily in every case,” the Court guided. In Kinder Morgan Energy v. Upstate Forever, a Clean Water Act case seeking certiorari of a decision from the Fourth Circuit, the Supreme Court followed County of Maui by issuing an Order granting certiorari, vacating the Fourth Circuit’s decision, and remanding the case to the Court of Appeals for “further consideration in light of County of Maui.” In Kinder Morgan Energy, two environmental groups argued that Kinder Morgan was illegally discharging pollutants into navigable waters without a permit under the Clean Water Act. Similar...

Who’s in Charge Here?: Third Circuit Holds That Government Was Not an “Operator” of Jersey City Chromium Facility for Purposes of Superfund Liability

Who’s in Charge Here?: Third Circuit Holds That Government Was Not an “Operator” of Jersey City Chromium Facility for Purposes of Superfund Liability

Federal courts have long struggled to determine the shape and boundaries of the wide liability net cast by the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), also known as the Superfund law. In its recent decision in PPG Industries Inc. v. United States, the Third Circuit applied circuit and Supreme Court precedent to hold that the government’s influence over a chromite ore processing plant in Jersey City during World War I and World War II was not pervasive or intrusive enough to make the government a past “operator” of the plant and thus liable for cleanup costs. Prior to PPG’s 1954 acquisition of the plant (which it continued to operate until 1963), Natural Products Refining Corporation (NPRC) operated the plant, which processed chromite ore into various chromium chemicals, including sodium bichromate. During both World War I and World War II (when it designated the plant’s output as critical war materials, i.e., products manufactured for direct military use), the government regulated the production of chromium chemicals. Through a variety of price, labor, and production controls, the government sought to encourage increased production of these key chemicals. Those efforts, however, did not extend to direct control over day-to-day operations or to...

SCOTUS Creates “Functional Equivalent” Test to Determine Whether Point Source Dischargers Are Subject to the Clean Water Act

SCOTUS Creates “Functional Equivalent” Test to Determine Whether Point Source Dischargers Are Subject to the Clean Water Act

The U.S. Supreme Court recently handed down a decision in the most prominent Clean Water Act (CWA) case since its 2006 plurality decision in Rapanos v. United States. In County of Maui v. Hawaii Wildlife Fund, the Court interpreted the landmark statute to require a permit where there is a “functional equivalent” of a direct discharge from a “point source” into “navigable waters.” The likely impact of this holding for the parties is to subject the County of Maui to the statute’s permitting requirements for its discharges of treated wastewater through wells to groundwater that eventually reach the ocean. Beyond the parties, environmental groups are likely to cheer this decision while the regulated community, and lower courts, will likely be wary of the Court’s multifactor test. The CWA prohibits the “addition” of any pollutant from a “point source” to “navigable waters” without a permit from the Environmental Protection Agency (EPA). The County of Maui came before the Court as the operator of a wastewater reclamation facility in Maui, Hawaii. That facility collects sewage, partially treats it, then pumps that water into four underground wells. The effluent then travels about a half mile through groundwater to the Pacific Ocean. For nearly...

“Cooperative Federalism” or “Paternalistic Central Planning”?: U.S. Supreme Court Agrees That State Courts Can Hear Claims Over Adequacy of CERCLA Cleanups Under Certain Circumstances, But Limits Plaintiffs’ Options

“Cooperative Federalism” or “Paternalistic Central Planning”?: U.S. Supreme Court Agrees That State Courts Can Hear Claims Over Adequacy of CERCLA Cleanups Under Certain Circumstances, But Limits Plaintiffs’ Options

The federal Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), also known as the Superfund law, prescribes a careful process for making decisions on how to remediate contaminated sites. To avoid delay, the statute also divests federal courts of jurisdiction to hear most challenges to the selected remedy. In its recent opinion in Atlantic Richfield Co. v. Christian, the U.S. Supreme Court agreed that CERCLA does not bar state courts from hearing claims grounded in state law that go beyond claims for money damages and seek a cleanup that goes beyond what EPA requires. The case arose in Montana, where the Anaconda Copper Smelter operated for over a century and contaminated an area of over 300 square miles with arsenic and lead. Atlantic Richfield Company acquired the financially troubled smelter in the 1970s but could not reverse its decline, and closed it by 1980. Three years later, EPA named it one of its first official Superfund sites, and since then Atlantic Richfield has spent over $450 million on a cleanup that is expected to continue until 2025. The Superfund site that Atlantic Richfield has been remediating includes numerous residential properties. The owners of 98 of those properties sued Atlantic Richfield...

U.S. EPA and New York ESD Provide Updated Guidance Regarding Environmental Work Permitted for During COVID-19 Pandemic

U.S. EPA and New York ESD Provide Updated Guidance Regarding Environmental Work Permitted for During COVID-19 Pandemic

Within the past several days, both the U.S. Environmental Protection Agency (EPA) and the New York Empire State Development Corporation (ESD) have provided updated guidance clarifying the standards for deciding what types of work may proceed at hazardous waste sites during the COVID-19 pandemic. EPA Interim Guidance on Site Field Work Due to Impacts of COVID-19 EPA’s April 10, 2020 interim guidance supplements the previously-issued March 19, 2020 guidance from the Office of Land and Emergency Management. It applies to response actions at cleanup and emergency response sites where EPA is the lead agency or has direct oversight or responsibility for the work, including response action work that may be conducted by states, tribes, other federal agencies, and potentially responsible parties (PRPs). At these sites, EPA will continue to make decisions on a case-by-case basis regarding ongoing site activities, with top priority given to protecting the health and safety of the public and maintaining the health and safety of EPA personnel and other on-site cleanup partners. The guidance also directs Regions to consider other important priorities, such as whether local officials have made specific requests to suspend work, whether on-site workers have tested positive or shown symptoms of COVID-19, and...

NJ District Court Leaves Plaintiff Without Course of Relief Under CERCLA

NJ District Court Leaves Plaintiff Without Course of Relief Under CERCLA

In Stahl v. Bauer Auto, Inc., the U.S. District Court for the District of New Jersey handed down a decision that may be troubling for parties seeking to recover environmental cleanup costs under the Comprehensive Environmental Responsive Compensation and Liability Act (CERCLA). By way of background, CERCLA generally provides a private cause of action to plaintiffs in two circumstances. The first falls under section 107(a), which allows a plaintiff to seek recovery of response costs that it has incurred from other potentially responsible parties. The second falls under section 113(f), which allows a plaintiff that is or was the defendant of a cost recovery claim, or that has resolved its liability with the Environmental Protection Agency (EPA) under a judicially approved settlement, to seek contribution from other potentially responsible parties. Generally, a party that has incurred or will incur costs under CERCLA falls under one or both of these two categories. However, the N.J. District Court in Stahl held that there is at least one scenario where a plaintiff does not fall into either of these two categories and therefore has no claim under CERCLA. The factual history in the Stahl matter is long and complex. In short, the underlying...

U.S. Supreme Court Provides Guidance on the Disclosure of Confidential Information Under FOIA

U.S. Supreme Court Provides Guidance on the Disclosure of Confidential Information Under FOIA

Businesses often share sensitive information with the government either voluntarily or by mandate. This information becomes subject to requests under the Freedom Of Information Act (FOIA), which is a source of concern to any business worried about disclosure of competitive business information. The United States Supreme Court recently handed down a decision that directly addresses this concern. In Food Marketing Institute v. Argus Leader Media, the Court provides guidance on the protection from the disclosure of shared information deemed “confidential” under FOIA’s Exemption 4. In addition to businesses, this decision will have significant impact on public interest groups and media that may seek information through FOIA. Justice Gorsuch authored the opinion for the majority, which Chief Justice Roberts and Justices Thomas, Alito, Kagan, and Kavanaugh joined. Justice Breyer added an opinion concurring in part, and dissenting in part that Justices Ginsburg and Sotomayor joined. Argus Leader Media, a newspaper in South Dakota, filed a request under FOIA seeking information the United Stated Department of Agriculture collected as part of the national food stamp program known as the Supplemental Nutritional Assistance Program (SNAP). Specifically, Argus Leader sought the names and addresses of retailers that participate in SNAP and each store’s annual...

Settlors Beware: A Recent NJ District Court Decision Has the Potential to Have Far Reaching Impacts on Parties Entering into Settlements Under CERCLA

Settlors Beware: A Recent NJ District Court Decision Has the Potential to Have Far Reaching Impacts on Parties Entering into Settlements Under CERCLA

A recent decision from the United States District Court for the District of New Jersey may throw a new wrinkle into the already complex settlement process under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Specifically, the decision addresses the question of what claims are included in the “matters addressed” in a settlement and entitled to contribution protection. On July 23, 2018, in N.J. Dep’t of Envtl. Prot. v. Am. Thermoplastics Corp, et al., Judge William H. Walls granted summary judgment in favor of the third-party defendants Carter Day Industries, Inc. (CDI), Combe Fill Corporation (CFC), and Combustion Equipment Associates, Inc. (“CEA”) (collectively, “Carter Day Parties”). Judge Walls held that the Carter Day Parties are entitled to contribution protection from claims for CERCLA costs incurred by the United States Environmental Protection Agency (USEPA) based on a settlement agreement between the Carter Day Parties and the State of New Jersey, notwithstanding that USEPA was not a party to the settlement. In following, the five-count first amended complaint of the third-party plaintiffs’ Compaction Systems Corporation of Connecticut, Inc. and Compaction Systems Corporation of New Jersey (together, “Compaction”) was dismissed with prejudice. The five counts of the complaint were: i) cost recovery...

EPA Provides Guidance to BFPPs Regarding Their Ability to Receive Reimbursement from EPA Superfund Special Accounts

EPA Provides Guidance to BFPPs Regarding Their Ability to Receive Reimbursement from EPA Superfund Special Accounts

One underused provision in the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) makes Environmental Protection Agency (EPA) Superfund Special Accounts available for reimbursement to Bona Fide Prospective Purchasers (BFPPs). This provision has received greater scrutiny by EPA following the creation of the Superfund Task Force (“Task Force”) in May 2017, and BFPPs should carefully consider the potential benefits that Superfund Special Accounts might provide. The Task Force includes senior representatives from different EPA Regional Offices with responsibility for Superfund policy and enforcement. EPA created the Task Force to streamline and strengthen the Superfund program. In July 2017, the Task Force issued a report containing five goals and 42 recommendations. The full report is available here. Goal number two in the report is to reinvigorate responsible party cleanup and reuse of Superfund sites. One of the specific recommendations relating to this goal is to maximize the use of special accounts to facilitate site cleanup and/or redevelopment. EPA has begun to implement this recommendation with the issuance of a March 27, 2018 memorandum to its Regional Offices entitled: “Guidance on Disbursement of Funds from EPA Special Accounts to Entities Performing CERCLA Response Actions.” The full memorandum is available here. On July...

Superfund Task Force Listening Session on Recommendation 16-2, Part 2: Improving Implementation of Cleanup Agreements for Response Actions by PRPs

Superfund Task Force Listening Session on Recommendation 16-2, Part 2: Improving Implementation of Cleanup Agreements for Response Actions by PRPs

On June 18, 2018, the United States Environmental Protection Agency’s (“EPA”) held the last of eight listening sessions on the recommendations of its Superfund Task Force. This last listening session concerned Part 2 of Recommendation 16-2018, which calls for improvement in the process of implementing cleanup agreements under which potentially responsible parties (PRPs) commit to carry out site cleanups under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). EPA speakers included Ellen Stern (Office of Regional Counsel, Region 10), Ken Patterson (Office of Site Remediation Enforcement (OSRE), Douglas Dixon (OSRE), and Charles Howland (Office of Regional Counsel, Region 3). They noted a number of reasons for delays in the completion of cleanups under such agreements, ranging from the submission of multiple versions of the same deliverable and time-consuming dispute resolution procedures to lax (or, conversely, excessively stringent) enforcement of deadlines and imposition of stipulated penalties. They also acknowledged EPA’s reluctance to exercise its most extreme enforcement tool – taking over the work and using financial assurance established by the PRPs. Outside participants called on EPA to expand the number of PRPs that are called upon to perform cleanups (including municipalities) to reduce the financial burden on any one PRP. The Superfund...