On November 8, 2017, the Pennsylvania Environmental Hearing Board (the “Board”) issued an adjudication in Friends of Lackawanna v. DEP, EHB Docket No. 2015-063-L (Adjudication issued Nov. 8, 2017), in which the Board upheld the Pennsylvania Department of Environmental Protection’s (“DEP”) issuance of a renewal of Keystone Sanitary Landfill, Inc’s (“Keystone”) solid waste management permit for the Keystone Landfill. At the same time, the Board added a condition to the permit requiring Keystone to prepare a groundwater assessment plan based on groundwater degradation observed in one of its monitoring wells. Interspersed throughout this decision was language that shed additional light on the Board’s view of how Article I, Section 27 of the Pennsylvania Constitution, often referred to as the Environmental Rights Amendment, applies to DEP permitting decisions. Read More »

Share | Email| Comments|  Topics: Administrative Hearing, EHB, Environmental Rights Amendment, Groundwater, Landfill, Odors, Pennsylvania, Permits, Waste

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 »

Share | Email| Comments|  Topics: Arranger Liability, CERCLA, Cleanup, Contamination, Eighth Circuit, Enforcement, EPA, Iowa, Remediation, Superfund, Waste

In an unpublished opinion issued last week, the Appellate Division of the New Jersey Superior Court found that a local ordinance that declares as a nuisance “the escape into the open air . . . of smoke, fly ash, dust, fumes, vapors, mists, or gases as to cause injury, detriment or annoyance . . .” is neither preempted by the New Jersey Solid Waste Management Act (“SWMA”) nor unconstitutionally broad or vague.  The case, New Jersey v. Strategic Environmental Partners, LLC, No. A-4968-13T4, was decided on November 19, 2015 by Judges Messano and Simonelli. Read More »

Share | Email| Comments|  Topics: Consent Decree, Enforcement, Enforcement Action, Landfill, New Jersey, Nuisance, Odors, Preemption, Waste

Under Section 9607(a)(3) of CERCLA, a party who has arranged for the disposal of hazardous substances at a facility may, like other categories of Potentially Responsible Parties, be strictly liable for response costs.  Where the PRP has engaged in the sale of a “useful product,” even one known to be hazardous, is not liable as an arranger unless the PRP has taken “intentional steps to dispose of a hazardous substance.”   Burlington Northern and Santa Fe Ry. Co. v. U.S., 556 U.S. 599, 609-10 (2009)(“BNSF”).  Mere knowledge that there might be a discharge of hazardous substances in connection with the transport or use of the product is not sufficient to impose arranger liability.  Id. at 611.  As a result, “whether an entity is an arranger requires a fact-intensive inquiry that looks beyond the parties’ characterization of the transaction . . . and seeks to discern whether the arrangement was on Congress intended to fall within the scope of CERCLA’s strict-liability provisions.  Id. at 610.  Just such a “fact-intensive inquiry” was undertaken by the United States District Court for the Western District of Michigan last week in Georgia-Pacific Consumer Products LP v. NCR Corp., Case No. 1:11-CV-483 (W.D.MI. Sept. 26, 2013), one of a number of cases dealing with the recycling of “broke,” or scraps of carbonless copy paper coated with a PCB-containing emulsion produced by NCR from the mid-1950’s until 1971.  Read More »

Share | Email| Comments|  Topics: CERCLA, Cleanup, Contamination, Contribution, Cost Recovery, Waste, Water

As footnoted in yesterday’s post, the decision in Trinity Industries, Inc. v. Chicago Bridge & Iron Co., No. 12-2059 (3^rd Cir. Aug. 20, 2013), was a twofer.  Yesterday, we wrote about that part of the decision which held that a party who has resolved its liability under state statutes may seek contribution under Section 113(f) of CERCLA.  Today, we look at the second part of the decision, which concerns the Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. §6901, et seq.  Read More »

Share | Email| Comments|  Topics: Cleanup, Consent Decree, Contamination, Pennsylvania, Private Right of Action, RCRA, Remediation, Removal, Third Circuit, Waste

As most of our readers know, the Resource Conservation and Recovery Act (RCRA)gives the EPA control over  the generation, transportation, treatment, storage, and disposal of hazardous waste, often described as “cradle-to-grave” coverage of hazardous wastes.  One of its provisions, 42 U.S.C. § 6972(a)(1)(B), allows any person to bring suit against another “who has contributed . . . to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment.” Read More »

Share | Email| Comments|  Topics: Citizen Suit, Contamination, Cost Recovery, RCRA, Waste

Back in October, we reported on a Complaint filed in California, in the case of Center for Community Action & Environmental Justice v. Union Pacific Corporation, No. CV11-8609 (C.D. Cal.) that contended that particulate matter in diesel fuel combustion exhaust is a hazardous waste which is “disposed of” when emitted and therefore is subject to the requirements of Resource Conservation and Recovery Act (RCRA).  Creative as it might have been, on a Motion to Dismiss, the Honorable S. James Otero threw out the case without leave to amend. Read More »

Share | Email| Comments|  Topics: Air, Cancer, Case Update, Cases to Watch, Clean Air Act, Emissions, RCRA, Toxic Torts, Waste

Although CERCLA has been around for many years, courts are still interpreting both its parts and its whole.  In recent years, the Supreme Court has tried to direct traffic between Section 107(a), which permits PRPs to bring cost recovery actions against other PRPs for “any necessary costs of response incurred” by the PRP bringing suit, and Section 113(f), which permits PRPs who have been sued under section 106 or 107(a) or have entered into a judicially-approved settlement with a federal or state government resolving CERCLA liability to bring actions for contribution against other PRPs to recover amounts paid in excess of their equitable share of liability.   Because these two provisions have differing limitations periods, burdens of proof, and allow for different forms of recovery against multiple defendants, the distinction is often significant. Read More »

Share | Email| Comments|  Topics: CERCLA, Cleanup, Cost Recovery, Decisions of Note, Eleventh Circuit, Enforcement Action, Statute of Limitations, Superfund, Waste

We don’t just write, we speak too!  I’m going to be leading a breakfast roundtable discussion on March 6 as part of ICSC’s University of Shopping Centers.  More details are here and please stop by! Read More »

Share | Email| Comments|  Topics: CERCLA, Clean Air Act, Clean Water Act, Cleanup, Leases, RCRA, Real Estate, Speaking Engagements, Superfund, Waste, Wetlands

In a decision that should pique the interests of environmental consultants across the country, the U.S. District Court for the Eastern District of Missouri issued an opinion last month in BancorpSouth Bank v. Environmental Operations, Inc., Case No. 4:11CV9 HEA (E.D. Mo. Oct. 11, 2011),allowing a CERCLA claim to survive against several engineering firms hired to handle the remediation of an old landfill slated for a Brownfields redevelopment project.  The complaint alleged that the defendants failed to properly design and construct an engineered cell on the site (which didn’t account for the potential for methane gas to escape the cell), and further failed to adequately screen hazardous materials from the dirt on the site prior to spreading it around as fill material.  These activities, according to the plaintiff, not only constituted malpractice, but also turned the engineering firms into “operators” and/or “arrangers” under CERCLA, subjecting them to strict, joint and several liability for alleged damages in excess of $10 million. Read More »

Share | Email| Comments|  Topics: CERCLA, Consultant Liability, Cost Recovery, Decisions of Note, Negligence, Remediation, Response Action Contractors, Superfund, Waste