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...more
It’s been some time since I ranted about Superfund, but that’s not because the statute’s gotten any more reasonable. To the contrary, there’s so much to rant about that it usually just seems too futile to bother. Take Scott...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...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...more
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
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
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
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
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
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
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 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
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
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
10/8/2015
/ Administrative Procedure Act ,
CERCLA ,
Clean Air Act ,
Clean Water Act ,
Deprivation of Property ,
Due Process ,
Enforcement Actions ,
Environmental Protection Agency (EPA) ,
Penalties ,
Sackett ,
SCOTUS
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
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
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
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
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
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
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
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
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
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
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