On 6 September, the US EPA released its proposed rule to add perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) to the list of hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), also known as Superfund.
If finalized, these hazardous substance designations could have a significant impact on many industries, from creating
Earlier this month, the Supreme Court granted a petition for certiorari in Guam v. United States (No. 20-382), a case involving liability under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The case gives the Court an opportunity to better delineate the boundary between “cost recovery” claims under section 107, and “contribution” claims under section 113. See 42 U.S.C. §§ 9607, 9613(f). The Court will specifically address what kinds of settlement agreements trigger a section 113 contribution claim and its corresponding three-year statute of limitations.
Continue Reading Supreme Court grants Certiorari in Guam CERCLA Case
On November 24, 2020, the U.S. Environmental Protection Agency (EPA) issued a Prepublication Notice finalizing its proposed decisions to not impose Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) Section 108(b) financial assurance requirements on three industries (Industries):
EPA’s final rules neither remove any existing requirements nor impose additional, new requirements. The final rulemakings will not affect EPA’s authority to take CERCLA response or enforcement action with respect to any particular facility or industry, nor will they affect EPA’s authority under other environmental statutes that may be applicable to the facility. The final rules also will not affect EPA’s existing practice of imposing financial assurance requirements in CERCLA settlements and orders, which already provide protection against bankruptcies and other financial calamities that may impact performing parties at Superfund sites. [1]
In its ruling today in Atlantic Richfield Company v. Christian, the Supreme Court upheld a decision by the Montana Supreme Court allowing owners of contaminated residential properties at one of the nation’s largest Superfund sites to pursue state law claims for damages in the form of restoration of their properties beyond the cleanup mandated by the U.S. Environmental Protection Agency, rejecting claims by the defendant in the state court action that these claims were barred by the terms of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The Court also held that the property owners, although never pursued by EPA to contribute to any of the CERCLA response costs at the site, nonetheless were “potentially responsible parties” within the meaning of the statute, and therefore would be required to obtain approval from EPA for any additional cleanup arising under state law.
Continue Reading Supreme Court Green Lights State Law Claims for Broader Cleanup at Superfund Sites, but only with EPA’s OK
Last month, the Supreme Court held oral argument in a case that addressed cleanup obligations for potentially responsible parties (PRPs) at Superfund sites. In Atlantic Richfield Company v. Christian, a company tasked with remediating one of the nation’s largest Superfund sites is urging the Supreme Court to overturn a Montana Supreme Court decision that permitted residents to sue the company for additional restoration damages, despite its ongoing cleanup efforts under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).
Continue Reading Supreme Court Considers Landowner Rights in Superfund Case
The Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), commonly referred to as the Superfund law, directed the United States Environmental Protection Agency (EPA) to create a list of the country’s most hazardous waste sites. Sites are proposed to be placed on this “National Priorities List” (or NPL as it is known to environmental law professionals) if they exceed a certain risk score, or Hazard Ranking, and added to the List if the ranking is confirmed after a formal notice-and-comment process. A detailed set of regulations called the National Contingency Plan (NCP) governs how sites placed on the NPL will be investigated, alternative remedies evaluated, and a final remedy selected and then implemented. The NPL, the NCP, and various EPA guidance memoranda have established what practitioners acknowledge is an imperfect but generally workable process in which EPA and states work with potentially liable parties to manage cleanups at NPL sites.
Continue Reading EPA’s Superfund “Emphasis List” : Some New Questions
The United States Environmental Protection Agency (EPA) concluded a series of eight Superfund Listening Sessions between May 21 and June 18 to explain a number of initiatives to reform the Superfund program and promote the cleanup and redevelopment of contaminated sites. The PowerPoint presentations used in these sessions can be accessed here. While informative, the sessions and PowerPoint slides used by the speakers also raise some interesting questions about potential changes in the remedy selection process and the restoration of damaged natural resources.
Continue Reading The CERCLA Redevelopment Focus: Will There Be an Impact on Remedy Selection Decisions and Natural Resource Damage Claims?
We are serious. And don’t call us Shirley. So EPA sent your company a dreaded Request for Information (“RFI”). What do you do now? If you’ve never been through this process before, you likely have a lot of questions running through your head.
Continue Reading An RFI? Surely You Can’t Be Serious.