This post was authored by summer associate Kelly Hanna.

In Daikin Applied Americas, Inc. v. EPA, the D.C. Circuit Court of Appeals sided with the U.S. Environmental Protection Agency (“EPA”) by holding that a groundwater plume can be listed as a Superfund Site on the National Priorities List (“NPL”) pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), 42 U.S.C. § 9601 et seq., even if the sources of contamination are not clearly identified. No. 20-1479, 2022 WL 2565083 (D.C. Cir. July 8, 2022). The Court also held that substantial evidence exists to support aquifer interconnectivity so long as observed releases occur at each aquifer. Thus, EPA’s decision to list a “groundwater plume with no identified source” that spanned multiple aquifers in an area southwest of Minneapolis, Minnesota on the NPL survived both arbitrary and capricious and substantial evidence challenges. Read More »

Share | Email| Comments|  Topics: CERCLA, EPA, Groundwater, National Priorities List, Superfund

This post was authored by summer associate Reilly Wright

In United States v. ERR, LLC, No. 21-30028 (5^th Cir. May 26, 2022), the Fifth Circuit ruled that the Seventh Amendment guarantees the right to a jury trial for defendants facing subrogation and recoupment claims under the Oil Pollution Act of 1990 (the “OPA”).  In 2015, ERR was found responsible for an oil spill originating from a wastewater treatment center that it owned and operated on the banks of the Mississippi River.  In 2017, the United States sued ERR under the OPA for removal costs it had paid from the Oil Spill Liability Trust Fund (the “Fund”) to Oil Mop LLC, a spill-response service provider.  ERR demanded a jury trial, which the district court denied, finding that the relief provided for in the OPA was in the nature of equitable restitution, so its claims sounded in equity, not in law.  However, the Fifth Circuit overturned that decision, holding that such claims were legal in nature and therefore provide ERR the right to a jury trial. Read More »

Share | Email| Comments|  Topics: Clean Water Act, Cleanup, Cost Recovery, Fifth Circuit, Oil Pollution Act, Response Action Contractors

This post was authored by Trang Do, a summer associate.

In West Virginia v. EPA, the Supreme Court limited the authority of the United States Environmental Protection Agency (EPA) to reduce greenhouse gases by setting emission guidelines for existing power plants, characterizing the energy generation shifting strategy proposed in the Clean Power Plan (CPP) as an overreach of the agency’s power. In a 6-3 decision, with the three liberal justices dissenting, the Court held that the authority to adopt a regulatory program that would significantly alter how the nation’s energy is generated fell under an “extraordinary case” of the major questions doctrine. West Virginia v. EPA 597 U. S. ____ (2022). The major questions doctrine requires that a federal agency have “clear congressional authorization” when acting on issues of great “economic and political significance.” Id. (citing Utility Air Regulatory Group v. EPA, 573 U. S. 302, 324). Read More »

Share | Email| Comments|  Topics: Clean Air Act, Climate Change, Decisions of Note, Electric, Emissions, Energy, EPA, Greenhouse Gas, Legislation, Refinery, Rulemaking, Supreme Court, West Virginia

On May 18, 2022 in York et al. v. Northrop Grumman Corp. Guidance and Electronics Co. Inc. et al., No. 21-cv-03251 (W.D. Mo.), a Missouri federal court dismissed Plaintiffs’ complaint alleging negligence, nuisance and trespass from alleged groundwater contamination, finding the claims were preempted by an existing consent decree. Read More »

Share | Email| Comments|  Topics: CERCLA, Cleanup, Consent Decree, Contamination, Injunction, Missouri, Negligence, Nuisance, Preemption, Property Value, Superfund, Trespass, Water

Can plaintiffs in a citizen suit piggyback on existing governmental enforcement action and enforce the same alleged violation under the Clean Water Act (“CWA”)? Yes, as long as the citizen suit does not seek civil penalties, according to the First Circuit in The Blackstone Headwaters Coalition, Inc. v. Gallo Builders, No. 19-2095, __ F. 4^th __ (1st Cir. 2022).  The First Circuit, sitting en banc, held that under the CWA, administrative enforcement action by the government precludes only a citizen’s “civil penalty action,” which the Court interpreted to mean an action seeking civil penalties.  A citizen suit seeking other forms of relief, i.e. injunctive or declaratory, however, could proceed notwithstanding the government’s action.   Read More »

Share | Email| Comments|  Topics: Citizen Suit, Civil Penalties, Clean Water Act, Cleanup, Declaratory Relief, Enforcement Action, First Circuit, Injunction, Stormwater, Water

On April 21, 2022, in Tomas Vera et al. v. Middlesex Water Co. (MID-L-6306-21, Superior Court of New Jersey, Middlesex County), a New Jersey Superior Court judge granted plaintiffs’ motion for certification in a case stemming from PFAS contamination of the county’s water supply.  Defendant Middlesex Water Co. (“Middlesex”) sent notices to customers on October 22, 2021 and November 8, 2021 advising that testing showed levels of Perfluorooctanoic Acid (“PFOA”) of 36.1 parts per trillion, well above the 14 parts per trillion maximum contaminant level (“MCL”) standard set by the New Jersey Department of Environmental Protection (“NJDEP”).  The notices further advised of health concerns potentially associated with PFOA, recommended that customers with “specific health concerns, a severely compromised immune system, have an infant, are pregnant or are elderly” seek advice from a health care provider, and recommended installing a home water filter to reduce levels of PFOA in the tap water or use bottled water for drinking, cooking, or preparing beverages for infants. Read More »

Share | Email| Comments|  Topics: Class Actions, Contamination, Drinking Water, Injunction, Medical Monitoring, New Jersey, PFAS, Water

In Georgia-Pacific Consumer Products LP v. NCR Corporation, the Sixth Circuit confronted a novel question concerning CERCLA’s statutes of limitations: whether a bare declaratory judgment on liability triggers the Section 113(g)(3) three-year limitations period for a contribution claim brought under Section 113(f)(1). The first circuit court to address this issue, the Court answered in the affirmative. Read More »

Share | Email| Comments|  Topics: Allocation, CERCLA, Contribution, Cost Recovery, Declaratory Relief, Michigan, PCBs, Potentially Responsible Parties, Sediment Sites, Sixth Circuit, Statute of Limitations, Superfund

When a public interest environmental rights group or other party appeals a decision by the New Jersey Department of Environmental Protection affecting a planned project, it should name the permittee as a party on the Notice of Appeal and serve them accordingly. On April 11, 2022, the Supreme Court of New Jersey remanded a case back to the Appellate Division and held that an appellant natural gas company should have been named as a party in the Notice of Appeal and served. See In re Proposed Constr. of Compressor Station (CS327), No. 086428 (Apr. 11, 2022). Read More »

Share | Email| Comments|  Topics: Administrative Appeals, Intervention, Natural Gas, New Jersey, Oil and Gas, Permits, Pipelines, Procedure, Standing

There are surprisingly few cases addressing whether, for an entity to be liable as an arranger under CERCLA, it must have known that the disposed substance was dangerous or hazardous. On March 10, 2022, in City of Las Cruces and Dona Ana County v. The Lofts at Alameda, LLC, the U.S. District Court for the District of New Mexico became the third federal district court to answer this question directly.

Two local government entities sued American Linen for cost recovery and contribution, alleging its decades-long operation of dry cleaning facilities caused them to incur costs to remediate a plume of contaminated groundwater. Specifically, the plaintiffs asserted that American Linen instructed its employees to dispose of PCE-laden wastes off site and that it contracted with a truck hauler to transport these wastes to a dump site three miles away. American Linen moved to dismiss, arguing principally that at the time of disposal, it did not know the wastes were hazardous substances. Read More »

Share | Email| Comments|  Topics: Arranger Liability, CERCLA, Contamination, Cost Recovery, Groundwater, New Mexico, Potentially Responsible Parties, Remediation, Superfund

In Borough of Edgewater v. Waterside Construction, LLC, et al., 2022 WL 557903 (D.N.J. Feb. 24, 2004), Plaintiff Borough of Edgewater (“Edgewater”) brought Spill Act claims relating to PCB contaminated material which was used as fill in a public park project.  At issue was whether Arconic, as a prior owner of the property from which the fill was obtained, was “in any way” responsible for contamination resulting from use of the fill at another property.  The Court held that, because Arconic had no control over the property, and hence the fill, at the time of its subsequent use, it was not liable to the Borough under the Spill Act. Read More »

Share | Email| Comments|  Topics: Causation, Contamination, New Jersey, Owner Liability, PCBs, Potentially Responsible Parties, Real Estate, Spill Act