It is not often that the Supreme Court takes on significant environmental cases – and in this instance – two significant decisions were issued by the Court within a month of each other.
For overviews and key takeaways of these two environmental law decisions from the U.S. Supreme Court – Atlantic Richfield Co. v. Christian
On April 10, 2020, the United States Environmental Protection Agency (EPA) issued its anticipated Interim Guidance (Guidance) to regional offices on field work at contaminated sites during the COVID-19 pandemic. The Guidance follows EPA’s earlier interim guidance on enforcement discretion, which did not apply to Superfund and RCRA Corrective Action sites.1
The Guidance recognizes that field work at certain sites will be delayed during the COVID-19 pandemic. Indeed, the press release accompanying the Guidance stated that EPA has reduced or paused work at approximately 34 sites, or 12% of all EPA-led sites with ongoing remedial actions due to the pandemic. The Guidance favors factors over bright line rules for how decisions to pause work should be made to promote nationally consistent decisions.
Continue Reading EPA Issues Interim Guidance for Site Field Work Decisions Due to the COVID-19 Pandemic
On March 26, 2020, the Environmental Protection Agency (EPA) issued guidance regarding enforcement discretion in light of the COVID-19 pandemic. The guidance acknowledges that COVID-19 may impair compliance with environmental laws and regulations and sets forth the steps that regulated entities must take to qualify for enforcement relief. The policy is retroactive to March 13, 2020, and has no end date.
General Conditions for Enforcement Discretion.
The guidance provides that regulated entities should make every effort to comply with their obligations, but if compliance is not reasonably practicable, they should:
(a) act responsibly to minimize the effects and duration of noncompliance;
(b) identify the nature and dates of noncompliance;
(c) identify how COVID-19 was the cause of noncompliance, and the decisions and actions taken in response, including best efforts to comply and steps taken to come into compliance at the earliest opportunity;
(d) return to compliance as soon as possible; and
(e) document the information, action or condition specified in (a)-(d).
Continue Reading EPA Enforcement Discretion Policy in Response to COVID-19 Pandemic
On February 20, 2020, the U.S. Environmental Protection Agency (EPA) announced its preliminary determination to regulate perfluorooctanesulfonic acid (PFOS) and perfluorooctanoic acid (PFOA). The preliminary determination marks an important step in setting maximum contaminant levels (MCL) for PFOS and PFOA.
EPA’s preliminary regulatory determination is required by the Safe Drinking Water Act (SDWA). Under the SDWA, EPA must publish a list of contaminants, the Contaminant Candidate List (CCL), that are not subject to an MCL every five years.1 EPA must then decide whether to regulate at least five of the contaminants on the CCL.2 To make a determination to regulate (i.e., a positive determination), EPA must find that: (1) consumption of the contaminant may result in adverse health effects; (2) the contaminant has been found in public water systems with a frequency and at levels to raise public health concerns; and (3) regulation of the contaminant presents a meaningful opportunity to reduce associated health risks.3
Continue Reading EPA Announces Preliminary Determination to Regulate PFOS and PFOA
On January 23, 2020, the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (USACE) (collectively, “Agencies”) finalized the Navigable Waters Protection Rule, which redefines the jurisdictional scope of the Clean Water Act (CWA or “Act”). The new rule will go into effect 60 days after it is published in the Federal Register,
On July 24, 2019, the New York State Department of Health (DOH) proposed drinking water standards for perfluorooctane sulfonate (PFOS) and perfluorooctanoic acid (PFOA). The DOH set the maximum containment level (MCL) for both PFOS and PFOA at 10 parts per trillion (ppt), the same level recommended by the Drinking Water Quality Council. Should the proposed rule become final, the MCLs will apply to all public water supplies regulated by the DOH. Before the DOH can finalize the rule, there will be a period of public comment, which lasts 60 days from the date of this notice.
Continue Reading New York Proposes MCLs for PFOS and PFOA
On April 1, 2019, the New York legislature passed the State’s $176 billion budget for fiscal year 2020. Included within the budget were two significant environmental measures aimed at curbing waste: a ban on plastic bags and a requirement that food waste be diverted from landfill.
Continue Reading New York State Bans Plastic Bags and Diverts Food Waste
The Third Circuit recently concluded that the owner of a remediated site could be liable under Section 107(a) of CERCLA for remediation costs incurred prior to its acquisition of the property. Pa. Dep’t of Envtl. Prot. v. Trainer Custom Chem. LLC 906 F.3d 85 (3d Cir. 2018).
The facts of the case are straightforward enough. Trainer Custom Chemical (“Trainer”) purchased property (“the Site”) at a tax sale knowing that it was contaminated. At the time of purchase, the Pennsylvania Department of Environmental Protection (PDEP) had spent more than $800,000.00 in remediation costs.
Continue Reading Third Circuit Holds Owner Liable for Pre-Acquisition Remediation Costs under CERCLA
Earlier this month, the Fifth Circuit held that sovereign immunity protected a number of state agencies and universities from Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) liability. Generally stated, sovereign immunity is a legal doctrine that prohibits private individuals from bringing civil lawsuits or criminal prosecutions against the state. State immunity from lawsuits is provided by the Eleventh Amendment, while the Supreme Court has established a similar rule for suits against the federal government. Sovereign immunity is not absolute, of course. The states and federal government may waive immunity or consent to the lawsuit.
Continue Reading Fifth Circuit Court of Appeals Holds Sovereign Immunity Bars CERCLA Action Against State Agencies and Universities