9th Circuit Concludes that RCRA Corrective Action is a CERCLA Response Action

In ASARCO, LLC v Atlantic Richfield Co., 2017 WL 3427708 (9th Cir. August 10, 2017) the court addressed whether a settlement under the Resource Conservation and Recovery Act (RCRA) could give rise to a contribution action under the Comprehensive Environmental Responsce Compensation and Liability Act (CERCLA).   The court noted a split in the federal circuits on the issue and sided with the Third Circuit in concluding…

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Supreme Court Decision: When Does the Government Need to Pay a Property Owner for “Taking” Property by Regulation

The Supreme Court issued an important regulatory taking decision on the last day of the term. Murr v Wisconsin (June 23, 2017). The Fifth Amendment of the Constitution prohibits the government from taking property without compensating the owner. Regulations often reduce the value of a property and such regulations do not result in a claim for compensation. Regulatory taking is the phrase used for situations…

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The Intersection Between Environmental Law and Landlord/Tenant Law

A recent decision by the Sixth Circuit Court of Appeals, applying New York contract law, illustrates the impacts a tenant's environmental activities can have on a landlord and the importance of addressing environmental compliance issues in a lease. Wilmington Trust Co. v ARP Generating Co., (June 8, 2017)was a breach of contract case brought by the owner of a facility, alleging that a consent order…

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Town of Islip v Datre Court Misconstrues CERCLA

In Town of Islip v Datre, 2017 WL 1157188 (EDNY, March 28, 2017), the court misread CERCLA and added a requirement that a defendant know that it is disposing of hazardous waste. This post will examine the causes of this error. The first cause of the error is trying to interpret language in a Supreme Court decision without any attempt to examine the underlying reasoning.…

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Release Reporting Under CERCLA and EPCRA

Release reporting requirements are not often litigated, but a recent decision from the Eastern District of California provides explains how the release reporting requirements under CERCLA relate to the release reporting requirements under EPCRA. In United States v Gibson Wine Co., 2017 WL 1064658 (E.D Cal. 2017), EPA alleged that failure to provide notice of a release of anhydrous ammonia was a violation of both…

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How and When to Challenge Regulatory Action: Center for Regulatory Reasonable-ness v EPA (Feb. 2017)

A recent decision of the United States Court of Appeals for the District of Columbia addresses important issues regarding challenges to regulatory action.  The case, Center for Regulatory Reasonableness v EPA, 2017 WL 763916, arose out of certain policy letters issued by EPA in 2011 that explained and arguably changed two EPA policies regarding publicly owned water treatment facilities.  The policy letters were challenged and the…

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NYSDEC Proposes Amendments to SEQRA Regulations

The New York State Department of Environmental Conservation recently published proposed amendments to the Part 617 environmental review regulations.  The text of the amendments as well as the generic environmental impact statement assessing the impact of the proposed amendments can be found on the NYSDEC website.  Public comments on the regulations are being accepted until May 19, 2017. The basic thrust of the regulations is…

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Asarco v Noranda: Uncertainty in Remediation Costs Means a Settlement can be Fair and Unfair.

In Asarco, LLC v Noranda Mining, Inc., 2017 WL 24609 (10th Cir. 2017), the court held that Asarco could proceed with a contribution claim against Noranda, in part because  there was no necessary inconsistency between (1) Asarco's representations to the bankruptcy court that its settlement with EPA was fair and equitable and (2) Asarco's claim in the contribution action that in its settlement with EPA,…

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The Contribution/ Cost Recovery Debate Continues: Diamond X Ranch v Atlantic Richfield Company

The relationship between 42 USC section 107(a) (the cost recovery provision) and 42 USC section 113 (the contribution provision) has been the subject of two Supreme Court decisions and much debate.  The decision of the United States District Court of Nevada in Diamond X Ranch v Atlantic Richfield Company (Arco), 2016 WL 4498211 (August 26, 2016) adds a new twist to the debate as the court…

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What Information About Applicants for Environmental Permits is Publicly Available Under the Freedom of Information Law?

The United States Court of Appeals for the Eighth Circuit recently decided that personal information about applicants for environmental permits is exempt from disclosure under the Freedom of Information Law (FOIA). American Farm Bureau Federation v USEPA, 2016 WL 4709117 (8th Cir. 2016). The case arose out of a challenge by the American Farm Bureau Federation and the National Pork Producers Council to the disclosure…

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