When a party “cashes out” of its liability to the government under the federal Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), under Environmental Protection Agency (EPA) guidance in place since 1988 the settling party typically pays a premium over what would otherwise be its equitable share. Even though settlements have featured premiums for decades, … Continue Reading
In ASARCO v. Atlantic Richfield, No. 18-35934 (9th Cir. Sept. 14, 2020), ASARCO entered into a consent decree under which ASARCO agreed to pay $111.4 million. ASARCO then sought contribution from Atlantic Richfield. The district court found Atlantic Richfield to be responsible for 25% of ASARCO’s response costs. The Ninth Circuit upheld the district court’s allocation … Continue Reading
This week, the Third Circuit issued an opinion in NJDEP v. American Thermoplastics Corp et al., No. 18-2865, which adds a new wrinkle on CERCLA section 113(f)(2), which bars non-settling parties from bringing claims for contribution against settling parties, while also placing new emphasis on CERCLA section 104 cooperative agreements in the context of settlements. … Continue Reading
On Dec. 11, the House of Representatives passed S. 1790, the National Defense Authorization Act (NDAA) conference report. The Senate followed suit on Dec. 17, bringing an end to protracted negotiations on this annual must-pass legislation. In one of their final acts, conferees agreed to provisions addressing per- and polyfluoroalkyl substances (PFAS). Two major provisions … Continue Reading
State voluntary cleanup programs have facilitated the cleanup and reuse of contaminated commercial and industrial properties throughout the country. The benefits of cleaning up and reusing contaminated properties are difficult to overstate—these voluntary cleanups promote reuse of existing infrastructure, protect human health, provide economic benefits to the surrounding area and assist in the preservation of … Continue Reading
PFAS (perfluoroalkyl and polyfluoroalkyl substances) have been under scrutiny on both sides of the Capitol in recent months, and the Senate made significant headway in late June in reaching consensus on PFAS legislation. Following two hearings in the Senate Environment and Public Works (EPW) Committee this spring, a package was unveiled and quickly considered in … Continue Reading
This week the U.S. Food and Drug Administration (FDA) confirmed it had conducted a study finding that certain types of per- and poly-fluoroalkyl substances (PFAS) have entered American food and drinking water supplies; however, “[c]urrent FDA testing has found that most foods have no or very low levels of PFAS.” The FDA’s efforts are ongoing … Continue Reading
When many parties are jointly and severally liable for the same contamination problem, not every one of those parties can pay more than its fair share of that joint liability in a settlement. Section 113(f)(2) of the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA” or “Superfund”) assures that the non-settling parties get the benefit … Continue Reading
From David G. Mandelbaum, a member of the Massachusetts Bar: As is familiar, section 121(e)(1) of the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. § 9621(e)(1), exempts Superfund cleanups from all federal, state, and local permits. In addition, section 113(b) grants the federal district courts exclusive jurisdiction “over all controversies arising under” CERCLA. … Continue Reading
On April 26, 2019, the Pennsylvania Environmental Hearing Board (EHB) voided two amendments to a prospective purchaser agreement (PPA) for the Bishop Tube Site entered into in 2007 and 2010. Del. Riverkeeper Network v. Dep’t of Envt’l Prot’n, EHB Dkt. No. 2018-020-L (Constitution Drive Partners). The underlying PPA was dated 2005. The Department of Environmental … Continue Reading
Section 400(h) of the National Contingency Plan (NCP) contains an unremarked, yet problematic, last sentence. The NCP, of course, governs response actions under the federal Comprehensive Environmental, Response, Compensation and Liability Act (CERCLA or Superfund); the government cannot recover costs incurred inconsistently with that regulation. 42 U.S.C. § 9607(a)(1-4)(A). Section 400(h) provides: (h) Oversight. The … Continue Reading
An appeal pending before the U.S. Court of Appeals for the Third Circuit asks whether CERCLA preempts state law claims for medical monitoring in Giovanni v. U.S. Department of the Navy, No. 17-2473 (3d Cir.). This is an important issue in the context of perfluorinated chemicals (PFCs) because the exact health effects remain in dispute. … Continue Reading
There are over 1,300 sites listed on the Environmental Protection Agency’s National Priorities List of contaminated sites that require cleanup, over a hundred of which are located in Pennsylvania. In May, EPA Administrator Scott Pruitt promised to get “hands-on” with the Superfund program in order to expedite the cleanup of contaminated sites around the country, … Continue Reading
When a private party enters into a CERCLA section 113(f)(B) administrative settlement, it may subsequently pursue the costs incurred under that administrative settlement against other PRPs. However, whether the settling party may bring a section 107 cost recovery claim or a section 113 contribution claim depends on the language of the settlement. A court’s interpretation … Continue Reading
As noted previously, the Ninth Circuit found, in Arizona v. City of Tucson, 761 F.3d 1005 (9th Cir. 2014), that state government agencies are not afforded the same level of deference as EPA on the question of whether a CERCLA consent decree is fair, reasonable and consistent with CERCLA. Arizona filed a petition for writ … Continue Reading
In a recent decision, Arizona v. City of Tucson, 761 F.3d 1005 (9th Cir. 2014), the Ninth Circuit found that state government agencies should not be afforded the same deference as EPA on the question of whether a CERCLA consent decree is fair, reasonable and consistent with CERCLA. In my recent column for Pennsylvania Law Weekly, I examine … Continue Reading
