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…
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…
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…
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,…
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…
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…
At the end of May, the Supreme Court held, in United States Army Corps of Engineers v Hawkes, Co., that a mining company could challenge a decision by the Army Corps of Engineers as "final" even though the party had not exhausted its administrative remedies. The case represents a significant expansion of the rights of regulated parties to challenge agency actions. The case arose out…
In Ebert v General Mills, 2016 WL2943193, (8th Cir, May 20, 2016), residential neighbors brought a class action suit against General Mills alleging that it caused the release of TCE into the ground and that TCE has migrated under their homes in the form of vapor in shallow groundwater, causing them injury. The specific injury alleged was risk to the health of the residents and…
A Texas appellate court made a ruling in a clean air act/public nuisance case that included a statement that I have made to numerous clients - - you have two independent obligations. First, follow the regulations. Second, make sure take reasonable steps to avoid causing injury to others. Many people have trouble seeing those as independent obligations. They think if you follow the regulations, you are OK. …
The Ninth Circuit Court of Appeals, in Ameripride Services, Inc. v Texas Eastern Overseas Inc,, (2015 WL 1474947, April 2, 2015) recently addressed the relationship between consistency with the National Contingency Plan (NCP) and CERCLA contribution claims. The issue was, given that a section 107 cost recovery plaintiff must prove that the costs were incurred in a manner that was consistent with the NCP, does…