Third Circuit Affirms No Duplicative Reporting for “Federally Permitted Releases”

Two fires at the U.S. Steel Mon Valley Works facility near Pittsburgh, PA in December 2018 and 2019 resulted in the release of pollutants, including hydrogen sulfide, benzene, and coke oven gas into the air. Following air monitoring that revealed increased levels of the pollutants, in compliance with its Clean Air Act permits and regulations, U.S. Steel reported the fires and emissions to the Allegheny County Health Department—the local governmental arm that enforces the Clean Air Act.

Notwithstanding, the Clean Air Council, a nonprofit environmental …

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Supreme Court Holds CERCLA Contribution Requires Resolution of a CERCLA-Specific Liability

As previously reported by the Environmental Law Monitor, in January 2021, the Supreme Court of the United States granted certiorari in the matter of Guam v. United States, to resolve a long-standing circuit split on an issue related to CERCLA’s settlement and contribution provisions.

By way of background, the United States and Guam have been embroiled in a decades-long dispute over the Ordot Dump, which was constructed by the United States Navy in the 1940s, and served as a toxic military waste deposit …

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SCOTUS to Resolve Circuit Split Regarding CERCLA Liability

On January 8, 2021, the Supreme Court of the United States (SCOTUS) granted the Government of Guam’s petition for a writ of certiorari in a Superfund cost recovery case in which Guam faces a $160 million cleanup bill for a landfill leaking toxic waste at a site that the U.S. Navy created in the 1940s. The case, Government of Guam v. United States, Docket No. 20-382, presents two longstanding circuit splits before SCOTUS, which address CERCLA’s settlement provisions and their impact on a settling …

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EPA Final Rulemaking Will Not Require Additional Financial Assurance Requirements for Cleanups at Industrial Sites

On November 25, 2020, the U.S. Environmental Protection Agency (EPA) announced it finalized rulemaking on financial assurance requirements for the Electric Power Generation, Transmission and Distribution; Petroleum and Coal Products Manufacturing; and Chemical Manufacturing industries. The EPA determined the financial risks from facilities in these industries are addressed by existing state and federal regulations and modern industry practices, which mitigate risks inherent in these industries and cover the costs of cleaning up hazardous substance releases.

The final rulemaking relates to section 108(b) of the Comprehensive …

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Increase of Climate-Related Weather Events Continue to Threaten Superfund Sites

The U.S. EPA’s Superfund program began in 1980 in response to serious health concerns arising out of a school and neighborhood in upstate New York that was built atop a toxic-waste dumping ground now infamously known as Love Canal—the nation’s first Superfund site. Since then, a list of more than 1,750 sites have cropped up and made it to the Superfund program’s National Priorities List.

Turning to weather-related events—the Government Accountability Office (GAO) warned in a 2019 report that 945 Superfund sites remain vulnerable to …

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Bona-Fide Improvement: Ohio Adds BFPP Defense to Hazardous Waste Liability

This summer, Ohio implemented a change in its hazardous waste law that will be welcomed news to purchasers of brownfields. The new law adds a bona-fide prospective purchaser (BFPP) affirmative defense that will make those who qualify for its protections “immune to liability” to the state under the state’s environmental laws. Additionally, the new defense applies retroactively to pending causes of action that started before the law’s effective date.

The concept of a BFPP defense is familiar to purchasers of commercial property, as a similar …

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SCOTUS Plays Red Light, Green Light in CERCLA Decision

The Supreme Court issued a landmark CERCLA decision in Atlantic Richfield Co. v. Christian. Most notably, the court held that CERCLA did not deprive Montana state courts of jurisdiction over state law trespass, nuisance, and strict liability claims brought by owners of land within a Superfund site, even where the landowners sought a cleanup that went beyond the remediation plan approved by the EPA. However, the court also held that the landowners were potentially responsible parties under CERCLA, and therefore the landowners’ remediation plan …

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There is No Full and Final Settlement Under CERCLA

The U.S. Supreme Court this week ruled in Atlantic Richfield Co. v. Christian that state law claims are still valid against landowners who have entered into settlements with the EPA pursuant to CERCLA. In this case, Atlantic Richfield Co. (Arco) had purchased the Anaconda Smelter site in Montana in 1977, where smelting had been taking place since 1884. In 1983, the site was designated as a Superfund site, and Arco worked with the EPA for approximately 35 years to remediate it. In 2008, landowners within …

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When Too Much Is Too Much: EPA Declines Further Regulation Over Chemical Manufacturers

The Environmental Protection Agency (EPA) Administrator, Andrew Wheeler, signed a proposed rule under Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) to not impose financial responsibility requirements for facilities in the chemical manufacturing industry on Feb. 10, 2020. A number of environmental advocacy groups spurred this action in August 2014 when they filed a writ of mandamus in the U.S. Court of Appeals for the District of Columbia Circuit, seeking financial responsibility rules in this industry and others.

Section 108(b) of CERCLA addresses the promulgation …

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SCOTUS Ponders Limits of Federal and State Oversight of Hazardous Waste Cleanup

On December 3, 2019, the United States Supreme Court heard oral arguments in Atlantic Richfield Co. v. Christian, which addresses the limits of state and federal oversight of hazardous waste cleanup.

Landowners in Montana obtained a 2017 Montana State Court win, in which the court granted them permission to seek funding for additional cleanup of hazardous waste emanating from a former anaconda site contaminated with arsenic and smelter lead in order to go beyond what the Environmental Protection Agency (EPA) had already directed in …

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