On July 19, 2017, the Tenth Circuit Court of Appeals held that the United States, as the title owner of a former mine, was a Potentially Responsible Party (PRP) under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), despite the fact that it did not have a possessory interest in the property at the time of the disposal of hazardous substances.  The opinion in Chevron Mining Inc. v. United States, No. 15-2209, 2017 U.S. App. LEXIS 12959, at *1 (10th Cir. July 19, 2017) thus appears to put to rest a defense often asserted, primarily by governmental entities, that “bare legal title” is insufficient for CERCLA liability to attach and instead that some other and additional “indicia of ownership” is required. Read More »

Share | Email| Comments|  Topics: Arranger Liability, CERCLA, Cleanup, Contamination, Contribution, Exploration, Mineral Rights, Public Lands, Remediation, Superfund, Tenth Circuit

Last week, the United States Court of Appeals for the Tenth Circuit ruled that a PRP’s bankruptcy settlement of its CERCLA liability did not bar that PRP from later seeking contribution for a share of the settlement – despite the bankruptcy court’s determination that the settlement represented the PRP’s “fair share” of CERCLA liability.  Read More »

Share | Email| Comments|  Topics: CERCLA, Cleanup, Contamination, Contribution, Cost Recovery, Decisions of Note, Superfund, Tenth Circuit

Last week, the 10th Circuit Court of Appeals affirmed dismissal of a Sierra Club citizen suit against a coal-fired power plant for an alleged permitting violation of the Clean Air Act, finding that the Sierra Club’s claims were time-barred.  In the case, Sierra Club v. Okla. Gas & Elec. Co., No. 14-7065 (10^th Cir. March 8, 2016), the court held that the Sierra Club’s claims for civil penalties were statutorily time-barred because they were brought more than five years after the power plant began its unpermitted modification of a boiler, an action which the Sierra Club claims violated the Prevention of Significant Deterioration (PSD) program under the Clean Air Act.  The court also affirmed dismissal of the group’s claims for injunctive and declaratory relief because those legal claims were predicated on the same facts as the time-barred civil penalties.  The court’s interpretation of the statute of limitations as applied to the PSD program is consistent with a 2011 district court decision in the 3rd Circuit, United States v. EME Homer City Generation L.P., et al., which we reported on here. Read More »

Share | Email| Comments|  Topics: Air, Citizen Suit, Civil Penalties, Clean Air Act, Statute of Limitations, Tenth Circuit, Tolling

One of the very first things I was told by the senior partner when I started practicing law was that there isn’t an honest mistake that can’t be fixed, except blowing the statute of limitations. As a result, my calendar has limitations periods blocked out weeks, months and in some cases years in advance, and if there’s ever a question of when it runs, I use the earliest date. The Tenth Circuit’s decision in Impact Energy Resources, LLC v. Salazar, Nos. 11-4043 & 11-4057 (Sept. 5, 2012 10^th Cir.), is a cautionary tale to those who may not be as conservative. Read More »

Share | Email| Comments|  Topics: Administrative Procedures Act, Cases to Watch, Exploration, Federal Procedure, Interior, Leases, Mineral Leasing Act, Oil and Gas, Procedure, Public Lands, Statute of Limitations, Tenth Circuit, Tolling