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 rein in EPA authority. Here’s one relatively modest suggestion for congressional consideration:...
View ArticleTHE SEVENTH CIRCUIT BREATHES NEW LIFE INTO THE DIVISIBILITY OF HARM
DEFENSE TO JOINT AND SEVERAL LIABILITYOn September 25, 2014, the Seventh Circuit added two more opinions to the long list of decisions arising out of the Lower Fox River and Green Bay Superfund Site...
View ArticleCERCLA-LIKE ALLOCATIONS FOR DAM REPAIRS
Much of my legal work deals with hazardous material remediations driven by CERCLA or state equivalents. The allocation of these costs among liable parties, in court or out, is generally conceded to be...
View ArticleDancing in Jackboots
While Congress designed CERCLA to enhance EPA’s ability to respond to hazardous contamination, the statute requires a level of cooperation between federal and state authorities for certain CERCLA...
View ArticleBurlington Northern Continues to PERColate
The Fifth Circuit has just weighed in with a significant interpretation of the Supreme Court’s landmark decision in Burlington Northern & Santa Fe Railway Co. v. United States, 556 U.S. 599 (2009)....
View ArticleEroding Ice: Fourth Circuit’s recent decision limiting “Arranger Liability”
A plaintiff seeking to characterize a business transaction as “disposal” under CERCLA may now feel like a polar bear looking for a patch of thick ice. On March 20, 2015, a divided panel on the Fourth...
View ArticleCERCLA Financial Assurance Update: Section 108(b) Remains Stalled, But New...
Earlier this year, I posted in this blog a discussion of EPA’s 35 year – and still unfinished – journey toward full implementation of the financial assurance (“FA”) mandate of CERCLA Section 108(b)....
View ArticleEPA RELEASES FRAMEWORK FOR FUTURE CERCLA 108(b) FINANCIAL RESPONSIBILITY...
The Environmental Protection Agency has released a framework for its future financial responsibility rulemaking under CERCLA 108(b). Although this framework states EPA’s current thinking only in...
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EPA To Rename OSWER: How About “The Office That Should Be Eliminated As Soon...
According to the Daily Environment Report (subscription required), EPA is going to change the name of the Office of Solid Waste and Emergency Response to the Office of Land and Emergency Management....
View ArticleCat on a Hot Stove-Lid: What We Should Learn from the Gold King Mine Spill
Mark Twain once wisely warned:We should be careful to get out of an experience only the wisdom that is in it -- and stop there; lest we be like the cat that sits on a hot stove‑lid. She will never sit...
View ArticleRevisiting CERCLA Pre-Enforcement Review
As a private practitioner and former trial attorney at the U.S. Department of Justice, I have advocated for timely and cost-effective cleanups that protect public health and the environment....
View ArticleDispute Resolution for CERCLA Sediment Investigations
In my last blog entry, I advocated for the amendment of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) to eliminate the bar on pre-enforcement review as one step...
View ArticleShow Me The (Big) Money – CERCLA Financial Assurance in the Era of Megasites
In the CERCLA world, the low hanging fruit has largely been picked. Long gone are the days of the run-of-the-mill $3M RI/FS leading up to a $30M RD/RA. We are getting to the tough stuff now – the...
View ArticleRoger Goodell and EPA Administrative Orders
You do not have to be a football fan to be aware of the legal battles between NFL Commissioner Roger Goodell and the star quarterback, and perpetual winner, Tom Brady arising out of Brady’s use of...
View ArticleDeal or no Deal? - Partial Dismissal of CERCLA Claims Against United States...
Three companion decisions in Atlantic Richfield Co. v. U.S. et. al., Case No. 1:15-cv-00056, in the U.S. District Court for the District of New Mexico, provide insight on the CERCLA statute of...
View ArticleThe Data Don’t Lie: Has MNA Science Outpaced Site Decision-Making?
The importance of a thorough technical evaluation of monitored natural attenuation (MNA) at chlorinated solvent and other groundwater-contamination sites cannot be overestimated. Regulatory acceptance...
View ArticleFlatulence Isn’t Super fun(d)
Do air emissions of pollutants constitute a “disposal” under the federal hazardous waste laws? The Ninth Circuit said “no” in Pakootas, et al. v. Teck Cominco Metals, Ltd. based upon its reading of...
View ArticleThe Enforcement of CERCLA Section 106 Orders; the Seventh Circuit Suggests a...
Superfund practitioners have long known that unilateral orders issued by EPA under Section 106(a) of the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), commonly known...
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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 is better than anyone else’s, but here are a few quick thoughts:It’s still going to be difficult to amend the key...
View ArticleApplying EPA Guidance to Improve Sediment Site Cleanups
After years of struggling to implement prompt and cost-effective cleanups of sediment sites under the Superfund program, EPA has adopted a new set of tools. This would be a good time for EPA to...
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