The Supremes Weigh in on Superfund and the Clean Water Act

Margaret Anne Hill, Frank L. Tamulonis III, and Stephen C. Zumbrun

Notwithstanding that the Comprehensive Environmental Response, Compensation, and Liability Act (more commonly known as “Superfund”) has been around for 40 years, and the fact that numerous cases have made their way to the U.S. Supreme Court analyzing liability under the Act, debates continue as to who can be a Superfund “potentially responsible party” or a “PRP.” For those who still do not get the scope and reach of Superfund liability, the Supreme Court has, once again, provided a clear response with respect to liability under the Act in an April 20, 2020, decision, Atlantic Richfield Co. v. Christian et al. In that case, the Court reaffirmed its position set forth in a 2007 case, United States v. Atlantic Research Corp., 551 U. S. 128, 136 (2007), that even parties whose property has been contaminated by others, and who are innocent with respect to the contamination, fall within the broad definition of liable parties under Section 107(a) of Superfund (which uses the term “covered persons”), subject to the third-party defense set forth in Section 107 (b).

Atlantic Richfield involved a group of 98 property owners who filed claims against Atlantic Richfield in Montana state court in connection with the Anaconda Copper Smelter Superfund Site in Butte, Montana, a 300-square-mile site contaminated with arsenic and lead. The property owners’ claims included trespass, nuisance, and strict liability claims under state common law. The landowners sought restoration damages, among other forms of relief, which was the issue before the Court since Atlantic Richfield conceded that Superfund preserves claims for other types of compensatory damages under state law, including loss of use and enjoyment of property, diminution of value, incidental and consequential damages, and annoyance and discomfort. The property owners sought to implement a remedial restoration plan that exceeded the U.S. Environmental Protection Agency’s (“EPA”) selected remedial actions. The question regarding their PRP status was before the Court in the context of determining if they were prohibited from taking further remedial action without EPA’s approval under Section 122(e)(6). Continue reading “The Supremes Weigh in on Superfund and the Clean Water Act”

EPA Reverses Course with the Mercury and Air Toxics Regulations for Power Plants

Margaret Anne Hill, Frank L. Tamulonis III, and Stephen C. Zumbrun

The saga for regulating mercury and air toxics from coal- and oil-fired power plants continues with a final rule promulgated by the U.S. Environmental Protection Agency (“EPA”) on April 16, 2020. EPA initially determined that it was “appropriate and necessary” under Section 112 of the Clean Air Act to regulate hazardous air pollutants (“HAPs”)—including mercury—for these types of power plants, commonly referred to as electric utility steam generating units (“EGUs”).[1] In a change of policy, EPA has now decided that the “appropriate and necessary” determination to regulate HAPs for these power plants—after two decades of additional EPA rules, and corresponding litigation—is no longer correct.[2]

A significant part of the backstory here is related to the U.S. Supreme Court’s decision in 2015 in Michigan v. EPA.[3] Briefly, the Court held that the EPA needed to consider costs in evaluating whether it was “appropriate and necessary” to regulate HAP emissions from coal- and oil-fired EGUs, especially the costs associated with compliance. Following the Supreme Court’s decision, EPA, under the Obama Administration, conducted a study in 2016 to evaluate these costs and concluded that it was still “appropriate and necessary” to regulate HAPs emitted from these sources.[4] The Trump Administration has now reversed course in issuing the April 16 final rule, effectively concluding that the EPA’s decision in 2016 was wrong. Continue reading “EPA Reverses Course with the Mercury and Air Toxics Regulations for Power Plants”

EPA Takes a Case-by-Case Approach in New Guidance for Cleanups and Emergency Response Actions: A First in Its History

Margaret Anne Hill, Frank L. Tamulonis III, and Stephen C. Zumbrun

On April 10, the U.S. Environmental Protection Agency (“EPA”) released its latest coronavirus COVID-19 Guidance addressing cleanups and emergency response actions that are being conducted under various environmental laws, including Superfund, RCRA Corrective Actions, TSCA PCB cleanup actions, and the Oil Pollution Act, as well as the underground storage tank program. The bottom line for businesses and the regulated community: for response actions where EPA is the lead agency or has direct oversight for work being performed, EPA is directing its Regional Offices to evaluate, and periodically reevaluate, whether ongoing response actions should continue in light of the potential impact of COVID-19 on cleanup sites, the surrounding communities, EPA personnel, and the respective states. EPA advises that decisions about continuing, reducing, or pausing cleanup actions should be made on a case-by-case basis, and that any requests from potentially responsible parties for extensions or delays in performance should also be evaluated individually.

EPA’s general directive to its regions is that they should consider whether to move forward with response actions, or whether, under the circumstances, securing a site is more appropriate so that response actions can continue at a later date. While on-site response actions may start or continue where there are no COVID-19 health declarations that prohibit or discourage such activities, EPA emphasizes that other factors must also be considered, including: the safety and availability of work crews, the critical nature of the work, logistical challenges (e.g., transportation, lodging, availability of meals, etc.), and the nature of the construction required. Continue reading “EPA Takes a Case-by-Case Approach in New Guidance for Cleanups and Emergency Response Actions: A First in Its History”

EPA Announces New Policy Regarding Enforcement Discretion

Margaret Anne Hill, Frank L. Tamulonis III, and Stephen C. Zumbrun

 

 

 

OVERVIEW/APPLICABILITY/SCOPE

Due to the coronavirus COVID-19 pandemic, the U.S. Environmental Protection Agency (“EPA”) announced a Policy that will effectively relax civil enforcement in certain circumstances. The EPA recognizes that worker shortages and supply issues may exist due to the pandemic and has decided to exercise enforcement discretion with respect to compliance with environmental laws. The Policy is retroactive to March 13, 2020, and while EPA emphasizes that it is temporary, EPA did not provide a termination date. It is important to note that the Policy applies only to certain civil violations and the regulated community is required to make every effort to maintain compliance with environmental laws. We have outlined below important specifics that will guide you in relying upon the Policy. You should contact counsel if you are having compliance issues due to the COVID-19 situation or have questions regarding EPA’s new Policy. Continue reading “EPA Announces New Policy Regarding Enforcement Discretion”

DOJ Axes Supplemental Environmental Projects in Civil Settlements

Kevin R. Doherty and Margaret Anne Hill

Earlier this month, the Department of Justice (“DOJ”) officially eliminated the use of “Supplemental Environmental Projects” in civil settlements. The once-popular settlement tool, commonly known as SEPs, allowed alleged violators of environmental laws to complete Environmental Protection Agency (“EPA”)-approved projects in exchange for reduced penalties. These projects were considered by EPA and DOJ as providing tangible environmental and/or public health benefits to the environment and/or the affected community, and through their completion, settling parties were permitted to offset a portion of their civil penalties through cost effective and proactive environmental measures. Continue reading “DOJ Axes Supplemental Environmental Projects in Civil Settlements”

Coronavirus: OSHA’s and EPA’s Response

Margaret Anne Hill, Frank L. Tamulonis III, and Stephen C. Zumbrun

As the world’s attention turns increasingly (and almost exclusively) to the spread of COVID-19 (the coronavirus), we want to take this opportunity to highlight two important federal agency responses from the U.S. Occupational Safety and Health Administration (“OSHA”) and the U.S. Environmental Protection Agency (“EPA”). The responses from the Center for Disease Control (“CDC”) and World Health Organization (“WHO”) have received the bulk of public attention to date, and for good reason. Just this week, the WHO declared the outbreak a pandemic with nearly 125,000 cases reported across 118 countries and territories. WHO has shipped supplies and protective equipment to 57 countries and is preparing to ship to another 28 countries. WHO has published an R&D roadmap and comprehensive technical guidance. WHO has also pledged more than $440 million (U.S.) to WHO’s Strategic Preparedness and Response Plan.

Here at home, the CDC has likewise been operating in overdrive to reduce the spread and impact of the virus. The CDC has issued multiple clinical guidance documents for healthcare professionals in addition to travel guidance related to COVID-19. The CDC established a COVID-19 Incident Management System on January 7, 2020, and activated its Emergency Operations Center on January 21. Multidisciplinary teams have been deployed to support state and local health departments. CDC also developed diagnostic testing to track and confirm COVID-19 cases and testing kits from commercial labs are expected soon. The CDC has also issued well-publicized recommendations for the public to follow.

In addition to these sweeping responses from the WHO and CDC, OSHA and EPA have been busy preparing and executing their response to this pandemic. While some employers may be able to provide significant flexibility to employees, allowing them to work from home, other employers will need to keep employees onsite, and will need to ensure the safety of their workforce. Other employers, which may manage medical wastes, will need to exercise additional precautions in ensuring that infectious wastes potentially contaminated with COVID-19 are managed in accordance with relevant state and EPA medical waste requirements. Below are the highlights from each agency. Continue reading “Coronavirus: OSHA’s and EPA’s Response”