Environmental Law ReSource : Environmental Lawyer & Attorney : Reed Smith Law Firm : Climate Change, Sustainability

This post was written by David Wagner.

We’re in – LexisNexis has selected Reed Smith's Environmental Law Resource blog as one of the Top 50 Environmental Law & Climate Change Blogs for 2011. We were recognized as "preeminent thought leaders in the blogosphere" who "offer some of the best writing out there." LexisNexis found that our blog contains "a wealth of information for all segments of the environmental law and climate change industry, and includes timely news items, expert analysis, practice tips, frequent postings and helpful links to other sites and sources."

The 50 honorees were grouped into 10 categories and our blog was one of just 4 blogs honored under the "Litigation" category.

We’re thrilled and certainly appreciate the recognition. Even more importantly, we appreciate your interest in our blog.

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This post was written by David Wagner.

Recently, Reed Smith represented Dravo Corporation in a case captioned Morrison Enterprises, LLC v. Dravo Corporation, before the District Court for the District of Nebraska and the Eighth Circuit. Given that several significant issues were addressed in the Eighth Circuit’s decision, we address the key holdings in two different posts. This post addresses the issue of cost recovery versus contribution. A separate post discusses two issues relating to application of the statute of limitations.

The Decision: CERCLA’s Contribution Section Provides the Exclusive Remedy for a Liable Party Compelled to Incur Response Costs Pursuant to an Administrative Settlement

For four years, courts have been addressing an issue under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) left open by the U.S. Supreme Court in United States v. Atlantic Research Corp., 551 U.S. 128 (2007): whether a liable party sustaining expenses pursuant to a settlement following a suit under CERCLA Sections 106 or 107(a) could recover such compelled costs under Section 107(a), Section 113(f), or both. In ruling on this issue, the Eighth Circuit Court of Appeals recently held that CERCLA Section 113(f) – CERCLA’s contribution section – provides the exclusive remedy for a liable party compelled to incur response costs pursuant to an administrative or judicially approved settlement under Sections 106 or 107. Morrison Enterprises, LLC v. Dravo Corporation, 2011 WL 1237526 (8th Cir. Apr. 5, 2011).

In the case, Appellants Morrison Enterprises, LLC (Morrison) and the city of Hastings, Nebraska – both of which were liable under CERCLA for hazardous substances released into the groundwater – sued Dravo Corporation, a manufacturing site owner also liable under CERCLA. The Appellants filed suit under CERCLA Section 107 and sought to recover groundwater contamination costs related to the operation of Well D, a groundwater extraction and treatment system located downgradient of each party’s relevant source of contamination. The District Court granted Dravo Corporation’s motion for summary judgment, finding that Section 113(f) was the Appellants’ exclusive remedy. The Circuit Court affirmed.

At the outset, the Circuit Court explained that “liable parties which have been subject to Section 106 or 107 enforcement actions are still required to use Section 113.” In ruling for Dravo Corporation, the court held that, because Morrison and the city of Hastings were liable parties compelled to incur response costs pursuant to an administrative or judicially approved settlement under Sections 106 or 107, they could only bring a Section 113(f) claim for contribution.

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This post was written by Steven Nolan.

Recently, Reed Smith represented Dravo Corporation in a case captioned Morrison Enterprises, LLC v. Dravo Corporation, before the District Court for the District of Nebraska and the Eighth Circuit. A number of significant issues were addressed in the Eighth Circuit’s decision. This post discusses two issues relating to application of the statute of limitations A separate post addresses the issue of cost recovery versus contribution.

The Decision

The Eighth Circuit issued its opinion in Morrison Enterprises, LLC v. Dravo Corporation, 2011 WL 1237526 (“Morrison”) on April 5, 2011. Two issues relating to the statute of limitations were addressed. First, the court found that a cost recovery suit under §107 of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), 42 U.S.C. §9607 was not a “subsequent action” under that section where the plaintiff had previously sued the defendant for contribution under Section 113 of CERCLA. Second, the Court found that a decades-long program to install a municipal water supply system was a remedial action subject to the 6-year statute of limitation commencing from the initiation of construction set forth in 42 U.S.C. §9613 (g) (2) (B), and not a removal action, for which the statute of limitation did not begin to run until the project was completed. 42 U.S.C. § 9613 (g) (2) (A).

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This post was written by Nicolle Bagnell and Ariel Nieland.

Last week, Pennsylvania Department of Environmental Protection (DEP) Secretary Michael Krancer gave Marcellus Shale natural gas drilling operators a deadline of May 19 by which to voluntarily stop delivering wastewater produced from natural gas extraction to water treatment facilities. This request from the DEP comes as a result of concerns over increased levels of bromides detected in the Allegheny and Beaver rivers in western Pennsylvania. In August 2010, the prior administration implemented new regulations addressing the potential for contamination from "total dissolved solid" (TDS), a by-product of natural gas extraction. Bromides, which are also present in wastewater containing TDS, can become toxic when combined with chlorine used for water disinfection at treatment facilities. The 2010 TDS regulations imposed more stringent standards on publicly owned treatment works and centralized waste treatment facilities for the treatment of TDS discharges. However, the regulations included a "grandfather clause" allowing for facilities that had historically accepted drilling wastewater to continue to do so, provided that the total amount of wastewater they received did not increase. Out of the 27 "grandfathered" facilities, nearly half have voluntarily ceased accepting Marcellus Shale wastewater in the past year. DEP's request calls upon operators to stop delivering wastewater to the remaining 15 facilities in hopes that concentrations of bromides will "quickly and significantly decrease" as a result.

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This post was written by David Wagner.

A draft proposed rule that could exempt the geologic sequestration of carbon dioxide (CO2) from federal hazardous waste regulations is now moving through the regulatory process. On March 22, 2011, the U.S. Environmental Protection Agency (USEPA) sent a draft proposed rule to the White House Office of Management & Budget (OMB) that could conditionally exempt CO2 sequestered underground from Resource Conservation and Recovery Act (RCRA) requirements. It appears the rule would address the RCRA liability of owners and operators of carbon capture and sequestration (CCS) wells should CO2 leak and contaminate underground sources of drinking water. Following regulatory review by OMB, USEPA anticipates that the proposed rule will be published in the Federal Register in May 2011.

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This post was written by David Wagner.

It's really nice to be recognized. In fact, we're thrilled that LexisNexis has nominated Reed Smith's Environmental Law Resource as one of the Top 50 Environmental Law & Climate Change Blogs for 2011. Even better, they grouped the 50 nominees into 11 categories and our blog was one of just 7 blogs nominated under the "Litigation" category. LexisNexis selected the nominees based on "timely topics, quality writing, frequent posts and that certain something 'extra' that keeps a web audience coming back for more."

We certainly appreciate your interest in our blog and, if you want to support our nomination, LexisNexis is inviting comments.

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This post was written by Steven Nolan.

On January 28, 2011, the U.S. Environmental Protection Agency (USEPA) announced that it will consider vapor intrusion, the migration of volatile chemicals from contaminated groundwater or soil into buildings, as part of its system for listing Superfund hazardous waste sites. Beginning next month, USEPA will start the process with three public listening sessions. USEPA will host its first public listening session at its Arlington, Va. office on February 11, 2011. Two additional listening sessions will be held in San Francisco, Calif. and Albuquerque, N.M.

At the meetings, USEPA will accept public input on whether to include a vapor intrusion component to the Hazard Ranking System, which is the principal mechanism USEPA uses to place hazardous waste sites on the National Priorities List (NPL) of Superfund sites. The listing of a site on the NPL brings the site within the reach of the federal Superfund law, formally known as the Comprehensive Environmental Response, Compensation and Liability Act. Superfund sites are eligible for federal cleanup funds, and are subject to the detailed federal cleanup regulations set forth in the Code of Federal Regulations.

USEPA's decision to evaluate whether to include a vapor intrusion component in the Hazard Ranking System stems from recommendations issued last year by the Government Accountability Office (GAO). GAO concluded that if vapor intrusion sites are not assessed and, if needed, listed on the NPL, there is the potential that contaminated sites with unacceptable human exposure will not be acted upon. GAO recommended that USEPA determine the extent to which USEPA will consider vapor intrusion in listing NPL sites and how this will affect the number of NPL sites listed in the future.

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This post was written by David Wagner.

On May 28, the State of New York enacted the Electronic Equipment Recycling and Reuse Act, a law requiring all manufacturers that sell electronic equipment in the state to have in place a free, convenient electronic waste or recycling program by April 1, 2011. Under the new law, each manufacturer will have to recycle or reuse its market share of electronic waste by weight, based on its three-year average of annual sales in the state. They will also have to submit annual reports to the state documenting that they have met goals for collection and recycling. All electronics manufacturers must register with the state by January 1, 2011, and pay a $5,000 registration fee.

The new law, which preempts a New York City e-waste recycling law, covers televisions, VCRs, DVD and MP3 players, game consoles, fax machines, and computers and their peripherals such as monitors, keyboards, mice, scanners and printers.

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This post was written by Lou Naugle, Chris Rissetto and  David Wagner .

Almost 10 years after the United States committed in an international agreement to strengthen its hazardous waste regulations, the U.S. Environmental Protection Agency (EPA) issued a final rule that governs the shipping of hazardous waste between the United States and other countries. Details on the new rule can be found in The Sentinel, Reed Smith's quarterly newsletter that discusses export, customs and trade developments.

According to EPA, the new measures will increase regulatory oversight of the international shipping of hazardous waste and provide stricter controls. The final rule, which will be effective on July 10, 2010, is also designed to make international shipment regulations under the Resource Conservation and Recovery Act more consistent with those of the Organization for Economic Cooperation and Development (OECD), a consortium of 31 Member countries that includes the United States. Key changes to the rules include:

• Modifying the requirements concerning international shipment of hazardous waste destined for recovery among OECD countries;
• Establishing notice and consent requirements for SLABs intended for reclamation in another country;
• Changing the hazardous waste import-related requirements for U.S. hazardous waste management facilities to confirm that individual import shipments comply with the terms of EPA’s consent; and
• Revising the EPA address to which exception reports concerning hazardous waste exports are to be sent.

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This post was written by Steve Nolan and Lou Naugle.

On May 4, 2009, in Burlington Northern & Santa Fe Railway Co. v. United States, the Supreme Court addressed two issues under the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. §9601 et seq. (CERCLA), which it had never reached before. The first issue was the reach of the useful product defense, which has been generally recognized in principle by the lower courts. The second was the question of what showing is required of defendants to avoid joint and several liability that, for more than 25 years, the lower federal courts have imposed almost as a matter of course.

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This post was written by Indeg Kerr and Siobhan Hayes.

In the UK, the High Court issued judgment at the end of March in the civil litigation to decide on liability following the 2005 explosion at the Buncefield oil storage depot. The judgment raises a number of practical management issues to be considered by anyone operating a facility covered by the Control of Major Accident Hazards Regulations 1999 (COMAH) or simply managing hazardous substances in significant quantities. This article provides an overview of the judgment and outlines significant issues to consider.

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This post was written by David Wagner.

The UK's Department for Business Enterprise and Regulatory Reform (BERR) published a consultation on April 7 soliciting public comment on European Commission proposals to revise the WEEE and RoHS Directives. The consultation paper highlights the significant changes and poses questions for industry and others to address. Among other revisions, the proposal would establish under WEEE new collection targets for Member States and new targets for recovery and reuse/recycling. The proposal would also likely increase WEEE financing costs for producers. The proposed revisions to RoHS would include the possible review and restriction of four substances, specifically: hexabromocyclododecane (HBCDD); bis (2-ethylhexyl) phthalate (DEHP); butyl benzyl phthalate (BBP); and dibutylphthalate (DBP). Consultation responses (i.e., public comments) are due May 13, 2009.

The WEEE Directive (or Directive on Waste Electrical and Electronic Equipment) aims to minimize the environmental impact of electrical and electronic equipment by encouraging its reuse, recycling and recovery when it is discarded at end of life. The RoHS Directive (or the Restriction on the use of certain Hazardous Substances Directive) ensures that all Member States observe similar restrictions on the levels of six hazardous substances in the same categories of electrical and electronic equipment.
 

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 This post was written by David Weiss and Megan Demeter.

On March 9, 2009, the California Supreme Court issued its decision in State of California v. Allstate Insurance Co., Case No. S149988. In this unanimous decision, the Court resolved several issues in favor of the policyholder regarding the application of pollution exclusion provisions in the State’s comprehensive general liability insurance policies. The case arises out of the State of California’s liability for environmental contamination at the “Stringfellow Acid Pits” a state designed and operated waste disposal facility in Riverside County, California.

First, the Court addressed the relevant “discharge” for determining whether the “sudden and accidental” exception to the pollution exclusion applied and, therefore, reinstated coverage that otherwise would have been excluded. The contamination at issue was caused by the escape into the environment of pollutants that had been placed into containment ponds on the site. The Court affirmed the Court of Appeal’s decision that the relevant discharge for purposes of determining whether the discharge was “sudden and accidental” is the release of waste from the containment ponds rather than the initial disposal of waste into the ponds as the insurers argued. 

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This post was written by Louis A. Naugle and Mark A. Mustian.

A few months ago, EPA began a process toward possible regulation of the disposal of unused pharmaceuticals into sanitary sewer systems, by publishing notice of its intent to submit an Information Collection Request in order to better understand and document the current handling and disposal practices of unused pharmaceuticals. See, 73 FR 46903 (Aug. 12, 2008). Just last week, EPA announced a separate but related proposed rulemaking, in which EPA is proposing changes to the handling and disposal of unused pharmaceuticals that are currently classified and handled as hazardous waste (the “Unused Pharmaceuticals Rulemaking”). In this proposed Unused Pharmaceuticals Rulemaking, EPA plans to add pharmaceutical wastes that are RCRA hazardous waste to the list of materials that are classified as universal wastes. See, 73 FR 73519. This proposed change will potentially reduce costs for facilities that currently dispose of their unused pharmaceuticals as RCRA hazardous waste. The impact of EPA’s overall efforts to regulate the large and unknown volume of pharmaceutical waste not currently handled as hazardous waste is unclear.

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This post was written by Louis A. Naugle and Mark A. Mustian.

On Aug. 12, 2008, EPA announced its intention to submit an Information Collection Request (“ICR”) to the Office of Management and Budget, for collection of information from the Health Services Industry. 73 FR 46903 This ICR is the first step by EPA toward possible regulation of the disposal of unused pharmaceuticals, and the implementation of effluent limitations for disposal of unused pharmaceuticals to sanitary sewer systems. 

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