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Showing 12 posts in EPA.

One of the finest lines that environmental attorneys walk is in protecting communications between counsel and a retained environmental consultant from disclosure in litigation.  In a recent case out of the Northern District of Indiana, Valley Forge Ins. Co. v. Hartford Iron & Metal, Inc., No. 1:14-cv-00006 (N.D. Ill. Apr. 14, 2017), the Court found that communications between counsel and consultants retained by the counsel  were not protected by the attorney-client privilege, in large part because the consultants also performed remedial work.  However, as the work was done "in anticipation of litigation" with, among others, the Indiana Department of Environmental Management (IDEM) and EPA, substantive communications were protected by the attorney work product doctrine.   Read More »

In the recent decision of United States of America v. Boston and Maine Corporation, C.A. No. 13-10087-IT (D. Mass. Sept. 22, 2016), a Massachusetts federal judge ruled that issuance of a ROD was the completion date of a removal action for statute of limitations purposes even though the actual remedial activities had been completed nearly 13 years earlier.  In reaching this conclusion, the Court also examined the often vexing distinction between removal and remedial activities and the question of what constitutes a “facility” under CERCLA. Given the posture of the case, the decision may also serve to underscore the deference courts often afford to the federal government when it, rather than a private party, is seeking to recover costs.    Read More »

Earlier this month, a Michigan federal judge refused to dismiss a lawsuit brought by a coalition of plaintiffs seeking to force multiple city and state defendants to fix the city of Flint, Michigan’s water supply system.  The lawsuit arose from the crisis regarding lead contamination in Flint’s water supply, which has garnered national attention.  In the decision, Concerned Pastors for Soc. Action v. Khouri, No. 16-10277 (E.D. Mich. July 7, 2016), U.S. District Judge David M. Lawson rejected numerous attacks asserted by the defendants in a motion to dismiss.  Perhaps most notably, the judge rejected the argument that the federal court should defer to the U.S. Environmental Protection Agency’s (EPA) primary jurisdiction under the Safe Drinking Water Act (SDWA).    Read More »

Last week, the United States Supreme Court held that federal courts can review the Army Corps of Engineers’ determinations that a landowner’s property contains “waters of the United States” and is therefore subject to the Clean Water Act’s regulations and permitting process.  Remarkably, the decision was unanimous in affirming the Eighth Circuit’s decision that such determinations are considered final agency actions under the Administrative Procedures Act and are therefore reviewable by the courts.  The majority opinion in the case, United States Army Corps of Eng'rs v. Hawkes Co., No. 15-290 (U.S. May 31, 2016), was authored by Chief Justice Roberts while Justices Kennedy, Kagan, and Ginsberg each authored separate concurring opinions.   Read More »

Early this month, the Second Circuit heard oral argument in Catskill Mountains Chapter of Trout Unlimited, Inc. v. United States EPA, No. 14-1823, an appeal from the Southern District of New York’s March 2014 ruling which invalidated the “water transfer” exemption rule from National Pollutant Discharge Elimination System (“NPDES”) permitting requirements.  A decision from the Second Circuit, which will have far reaching effects on public and private entities alike, is expected in 2016. Read More »

Last week, a divided Eighth Circuit in United States v. Dico, Inc., No. 14-2762 (8th Cir. Dec. 10, 2015), reversed in part a district court’s grant of summary judgment against Dico, Inc., in which the lower court found that Dico arranged for disposal of hazardous substances by selling buildings contaminated with PCBs.  In reversing the district court’s determination that Dico intended to dispose of PCBs contained in the insulation of the buildings by selling the entire buildings, the Eighth Circuit also vacated a punitive damages award but allowed civil penalties to stand.  Read More »

The New Jersey Superior Court Appellate Division recently confirmed that the New Jersey Spill Act applies retroactively and abrogates the State of New Jersey’s sovereign immunity for contribution to contamination.  The case, NL Industries, Inc. v. State, Dkt. No. L-1296-14 (Law Div., Middlesex Cnty., August 27, 2014), affd. Dkt. No. A-0869-1413, (App. Div., Aug. 26, 2015), deals with the remediation of contamination related to the historic construction of a sea wall and jetty in the Laurence Harbor section of Old Bridge Township.  The sea wall and jetty are part of the Raritan Bay Superfund site, which was placed on the National Priorities List in November 2009 after EPA detected elevated levels of lead and heavy metals in the soil, beach, sand, and sediments surrounding the Bay.  In January 2014, the EPA issued a unilateral administrative order to NL Industries, the manufacturer of lead and other heavy metal slags that were used to construct the sea wall, to clean up the contamination, which is anticipated to cost in excess of $75 million.   Read More »

An issue that insurers and industry have grappled with is whether a company can obtain environmental insurance coverage for costs to address violations of the Clean Air Act, when the costs at issue are aimed at curbing future air emissions, rather than remediating emissions that have already occurred.  Last week, one federal judge in Louisiana answered that question in the affirmative in La Gen Louisiana Gen. LLC, et al. v. Illinois Union Ins. Co., Dkt. No. 3:10-cv-00516 (M.D. La., Aug. 5, 2015).  Read More »

Back in July of last year, in the case of Hobart Corp. v. Waste Management of Ohio, 758 F.3d 757 (6th Cir. 2014), held that the statute of limitations for a contribution action following the execution of an Administrative Settlement Agreement and Order on Consent (“AOC”) that settles an entity’s liability to the government begins to run as of the effective date of the AOC.  To the extent that anyone might have thought that the Sixth Circuit would reconsider this holding, those hopes have been dashed.  On January 24, 2015, in LWD PRP Group v. Alcan Corp., ___ F.3d ___ (6th Cir. 2015), the Sixth Circuit stood fast, finding that it lacked “power to reverse [Hobart,] reversing the district court’s denial of a motion to dismiss certain counterclaims. Read More »

On August 1, 2014, the Ninth Circuit Court of Appeals handed down a decision in Arizona v. Raytheon Co., No. 12-15691 (9th Cir. Aug. 1, 2014), that may give trial courts some pause before approving future CERCLA settlements.  At issue was whether the trial court failed to adequately scrutinize consent decrees entered into between the Arizona Department of Environmental Quality (the “ADEQ”) and twenty-two Potentially Responsible Parties (“PRPs”) allegedly liable under CERCLA for contamination at the Broadway-Patano Landfill Site.  The majority opinion held that the trial court’s deference to the AQED’s judgment that the settlements were fair and reasonable was impermissible, and sent the case back down for a more thorough fairness hearing.   However, the more important aspect of the decision may be that, in dicta, the Court concluded that “[e]ven if EPA had been a party to the proposed consent decrees in this case, the district court would have failed to fulfill its duty to independently scrutinize the parties’ agreements.”  Id. at 21. Read More »