CERCLA Case Law Update Anzie St. Clair Anything new? (i.e., PLEASE - - PowerPoint PPT Presentation

Case Law Update

Anzie St. Clair

CERCLA

Anything new?

(i.e., PLEASE don’t tell me about Burlington Northern)

• 1. An owner is still an owner, even when only an owner of unpatented mining

rights, and even when land is held in trust.

• 2. The United States continues to pick up some of the bill for WWII.
• 3. Distant, gradual air emissions are not enough for arranger liability.
• 4. Do non-CERCLA settlements start the clock for CERCLA claims?

Maybe.

• 5. EPA, no exemptions for CERCLA & EPCRA reporting requirements.

Chevron Mining, Inc. v. United States

863 F.3d 1261 (10th Cir. 2017)

Chevron Questa Mine Superfund Site $143 million Soil removal Sediment removal Stormwater controls

Photo source: EPA (right); Wikipedia (left)

Chevron Mining, Inc. v. United States

863 F.3d 1261 (10th Cir. 2017)

 A fee title holder = owner

 Plain meaning  Owner of land where release occurs is held liable  Need not own the entire facility  AND even the only ownership is of unpatented mining

rights

 Court disapproved of the indicia of ownership test

(Friedland)

 Risked conflating “owner” and “operator”

 Held the United States was not an arranger because it

did not own or possess the waste material.

El Paso Natural Gas Co. LLC v. U.S

2017 WL 3492993 (D. Ariz. Aug. 15, 2017)

Navajo Reservation Uranium Mines

El Paso NG is connected to 19 of the 111 abandoned uranium mines on the reservation.

Photo source: EPA (top); Wikipedia (left)

El Paso Natural Gas Co. LLC v. U.S

2017 WL 3492993 (D. Ariz. Aug. 15, 2017)

 A fee title holder = owner

 Even if the U.S. holds reservation land in trust for the benefit of

a tribe

 Facts demonstrating ownership:

 U.S. retained specific powers

 The tribe may not exclude the U.S.  The tribe could not convey rights to land without approval of the U.S.  Although the tribe’s land was protected from uncompensated 5th

Amendment taking, it did not prove the U.S. did not also have ownership rights.  Not enough that the tribe had exclusive use and possession of

reservation land

TDY Holdings, LLC v. U.S.

___ F.3d___, 2017 WL 4398561 (9th Cir. Oct. 4, 2017)

Teledyne Ryan Aeronautical 1939-1999 San Diego, CA PCB & chromium contamination TDY was a government contractor

Photo source: Miller Environmental, Inc

TDY Holdings, LLC v. U.S.

___ F.3d___, 2017 WL 4398561 (9th Cir. Oct. 4, 2017)

 Ninth Circuit reversed the district court’s allocation of 100%

to a government contractor and 0% to the federal govt.

 Held:

 D.Ct. made a 180 degree departure from Ninth Circuit case law

(U.S. v. Shell and Cadillac Fairview)

 Facts support an allocation of some liability to the U.S.

 Course of dealings – the U.S. foot the costs of TDY’s cleanup pre-1999  U.S. required TDY to use two specific hazardous chemicals

 Concurring Circuit Judge Watford – an allocation to the U.S. of

50% or more would be too much.

Pakootas v. Teck Cominco Metals, Ltd.

830 F.3d 975 (9th Cir. 2016) Photo source: UDO WEITZ/BLOOMBERG NEWS

Pakootas v. Teck Cominco Metals, Ltd.

830 F.3d 975 (9th Cir. 2016) Photo source: www.law.uh.edu (right); www.waterplanet.ws (left)

Pakootas v. Teck Cominco Metals, Ltd.

830 F.3d 975 (9th Cir. 2016)

 “Arrange for disposal”

 Aerial deposition of contaminants is not “disposal,” it’s too passive  “Disposal” in CERCLA

 Arranger and transporter liability  Its definition is cross referenced with RCRA

 Contaminants must be introduced to “land or water” through

“discharge, deposit, injection, dumping, spilling, leaking, or placing.”

 How does this decision apply to owners and operators?

 “any person who at the time of disposal of any haz. subst. owned or

• perated any facility at which such haz. subst. were disposed of”

Asarco LLC v. Atlantic Richfield Co.

866 F.3d 1108 (9th Cir. 2017)

Photo source: Billings Gazette

Asarco LLC v. Atlantic Richfield Co.

866 F.3d 1108 (9th Cir. 2017)

 A Circuit Split  A non-CERLCA settlement agreement may start the clock

for bringing CERCLA claims if the settlement:

 Requires the party to take response action or incur response

costs

 “Resolves” a party’s liability to the U.S./State for some or all of

its response

Asarco LLC v. Atlantic Richfield Co.

866 F.3d 1108 (9th Cir. 2017)

 What does “resolve one’s liability” mean?

 With certainty and finality  For at least some of its response actions or costs  Liability is still “resolved” even if there is:

 A covenant not to sue  A release from liability conditioned on completed performance  A recital that parties do not concede liability.

 Asarco’s 1998 RCRA Decree did not definitively resolve its

liability

 Limited to a release of liability for US claims of civil liability  The agreement repeatedly referenced Asarco’s continued

exposure

Waterkeeper Alliance v. EPA

853 F.3d 527 (D.C. Cir. 2017)

Photo source: NetNebraska.org

Waterkeeper Alliance v. EPA

853 F.3d 527 (D.C. Cir. 2017)

 CERCLA and EPCRA require parties to report releases of

hazardous substances to the environment.

 A 2008 EPA Rule exempted animal farms from complying

with these reporting requirements.

 Environmental groups challenged the rule under the APA.  D.C. Circuit held, reviewing with Chevron deference:

 EPA cannot create exemptions to the reporting requirements.  CERCLA and EPCRA are not ambiguous on that point.  EPA did not demonstrate in the record that requiring reporting from animal

farms was impractical or unlikely to result in a response to a hazardous substance release.

Other Recent Cases

Good luck demonstrating an intent to dispose on summary judgment

United States v. Dico, Inc., __F. Supp. 3d__, 2017 WL 4232375 (S.D. Iowa Sept. 5, 2017)

EPA found arbitrary & capricious on remedy selection process

Emhart Industries, Inc. v. New England Container Company, Inc., __ F. Supp. 3d. __, 2017 WL 3535003 (Aug. 17, 2017).

Response costs, or just NPDES compliance? Shipyard v. Steel Mill? Fight!

Also, passive transfer of groundwater not disposal

SPS Limited Partnership LLLP v. Sparrows Point LLC, 2017 WL 3917153 (D. Md. Sept. 6, 2017)

Contract Claims & CERCLA – Some lessons learned for transactional attorneys

Greyhound Lines Inc. v. Viad Corp., __ F.Supp.3d __, 2017 WL 2351659 (D. Ariz. May 30, 2017)

Remedy Performance: State Law Requirements & Compliance with CERCLA Consent Decrees

Bartlett v. Honeywell Int’l Inc., __ F.Supp.3d __, 2017 WL 2223025 (N.D.N.Y. May 19, 2017)

NCR’s Fox River Consent Decree Approval – A good summary of Fox River proceedings

United States v. NCR Corporation, 2017 WL3668771 (E.D. Wisc. Aug. 23, 2017)

An Emerging, But Largely Unregulated Contaminant Is Still a “Hazardous Substance” under CERCLA

City of Lake Elmo v. 3M Company, 237 F. Supp. 3d 877 (D. Minn. 2017)

Questions?

jdunbar@lvklaw.com astclair@lvklaw.com