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Superfund Reform, Part 2: Giving Credit Where Credit Is Due

Last week, I offered less than fulsome praise of EPA Administrator Pruitt’s announcement that he was taking control of remedial decision for big Superfund sites. Now, he’s followed up with a memorandum announcing...more

Scott Pruitt Just Solved All of the Problems with Superfund. Not.

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...more

5/17/2017  /  CERCLA , EPA , Hazardous Substances , Superfund

EPA Adds Vapor Intrusion to Hazard Ranking. Can You Say “Deck Chairs on the Titanic?”

EPA has finally issued a final rule including vapor intrusion in the Hazard Ranking System. The good news is that this is appropriate, because VI is one of the few real hazards regulated by the Superfund program. The bad...more

Trump’s Impact on Environmental Law? Let the Speculation Begin!

What will a Trump Presidency mean for environmental law? I’m not sure my crystal ball if better than anyone else’s, but here are a few quick thoughts...more

No Deference to State Settlements Under CERCLA? No Problem!

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...more

Complaints Are Not Totally Meaningless: A CERCLA Plaintiff Must Allege Disposal Against a Former Owner

I know it may surprise some litigators, but occasionally the allegations in a complaint do matter. In Garrett Day v. International Paper, the Court dismissed CERCLA claims brought by the current owner of a former paper mill...more

Stop the Presses. Superfund is Stupid.

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 –...more

Determining An Intent To Dispose Under CERCLA Remains a Puzzlement

Determining when a person has “arranged” for the disposal of a hazardous substance has long been difficult. The Supreme Court brought some clarity to the issue in Burlington Northern, when it said that...more

CERCLA Remains Ridiculous: A Remedy In Operation For 18 Years Is “Short Term”

Far too frequently, we are reminded just how hard judges must work to save CERCLA from itself. The decision last week in California River Watch v. Fluor Corporation is the most recent compelling example....more

Pre-enforcement Review? Not Enough. How About Pre-issuance Review?

In Sackett, the Supreme Court ruled that EPA could not issue enforcement orders under the Clean Water Act without allowing the subjects of the order the right to bring a pre-enforcement challenge to such orders under the...more

Is Superfund a Machine for Manufacturing Tea Party Members?

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...more

8/24/2015  /  CERCLA , Consent Decrees , EPA , Superfund , Tea Party

When Does a Judge Refuse an Unopposed Motion to Enter a Consent Decree?

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,...more

Is It Too Late to Just Throw Superfund to the Curb?

Last week, Judge Paul Borman of the Eastern District of Michigan, allowed a motion by the United States for judgment on the pleadings, dismissing a third-party complaint brought against the United States by Michigan...more

Parent Corporations Beware: Control Over Your Subsidiaries is a Double-Edged Sword

The decision earlier this month in Cyprus Amax Minerals v. TCI Pacific Communications is a useful reminder that corporate form exists for a reason and that parent corporations who ignore corporate niceties do so at their...more

Superfund Rant For a New Congress

So the new Congress will be controlled by the GOP. The House and Senate will consider various bills to reign in EPA authority. Here’s one relatively modest suggestion for congressional consideration: amend CERCLA to limit...more

11/12/2014  /  CERCLA , Environmental Policies , EPA , Superfund

CERCLA Preempts Local Cleanup Bylaws; PRPs Everywhere Breath a Sigh of Relief

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...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...more

When Does the Statute of Limitations Run on CERCLA Claims? No, Never? Well, Hardly Ever

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...more

When Is An Arranger Not An Arranger? When It Sells Some Good Stuff Along With The Junk

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...more

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...more

Is CERCLA More Reasonable Than the Common Law? Only in California, I Hope

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...more

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