When is a tenant liable as an owner under the federal Superfund law (aka CERCLA)?
How easily can a significant expansion in jurisdiction be called just a "clarification" of existing jurisdiction? On April 21, 2014, the United States Environmental Protection Agency and the Army Corps of Engineers published a proposed rule that promises to significantly change federal Clean Water Act jurisdiction. While EPA Administrator Gina McCarty has described the proposed rule as merely a clarification of existing EPA authority, if finalized, it will likely expand CWA permit requirements to include minor tributaries and even seasonal waters such as vernal pools as "waters of the United States."
Go to the head of the class if you know the difference between CAFE standards and CAFO standards: in January of 2011, new corporate average fuel economy ("CAFE") standards went into effect, requiring all automobile manufacturers to curb the amount of greenhouse gases ("GHGs") emitted from the tailpipes of Model Year 2012 cars. These revised CAFE standards were jointly designed by the National Highway Traffic and Safety Administration and the Environmental Protection Agency ("EPA"), and issued under the motor vehicle program (Title II) of the Clean Air Act ("CAA"). Before this time, the annually-updated CAFE standards did not include a GHG curb, and GHGs were not regulated under any part of the CAA.
Congress enacted the Superfund Act, whose formal name is the Comprehensive Environmental Response, Compensation, and Liability Act, or CERCLA, in 1980 to promote the clean up (remediation) of properties, typically abandoned landfills or other sites, that had been contaminated by the disposal of hazardous materials. To further this goal, Congress cast a wide net and imposed strict liability for all "Potentially Responsible Parties" (PRPs) who contributed to the contamination at a site. See 42 USCS Sec. 9607(a).
On June 6, 2011, the Supreme Court of the United States ended a decade of litigation when it denied a writ of certiorari (i.e., refused to review) a 2010 decision of the D.C. Circuit Court of Appeal which affirmed the trial court's decision deny General Electric's ("GE") attack on the constitutionality of the U.S. Environmental Protection Agency's ("EPA") authority to issue Unilateral Administrative Orders ("UAOs") under section 106 of the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA").
The District Court for the District of Maine relied on the Supreme Court's recent decision in Burlington Northern & Santa Fe Railway Co. v. United States, No. 07-1601, -U.S.- (U.S. May 4, 2009) ("BNSF"), in denying a motion to dismiss asserting that a CERCLA complaint failed to state a cause of action based on arranger liability. Frontier Communications. Corp. v. Barrett Paving Materials, 631 F.Supp.2d 110 (D. Me. 2009)
Following our posts on the Supreme Court's recent decision in Burlington Northern & Santa Fe Railway Co. v. United States, No. 07-1601, -U.S.- (U.S. May 4, 2009) ("BNSF"), this post will discuss implications of this decision on apportionment in Superfund cases as various commentators (including this one) see it.Our view is that the Court should have considered whether the trial court had the power to sua sponte apportion costs in the BNSF case. Only if the Court had answered "yes" to that question should it have addressed whether there was a rational basis for the apportionment found by the lower court. The burden of proof is on the party seeking apportionment. However, the Railroads never raised apportionment in this case, failing to acknowledge any liability for contamination on their parcel throughout the 13-year lease. The government plaintiffs also refused to acknowledge the potential divisibility of harm. Accordingly, neither plaintiffs nor defendants provided any information on the allocation issue, and the District Court was left to its own devices to determine proper apportionment. Indeed, it seems that the District Court bent over backwards to find a basis for apportionment.
Following our recent posts on the Supreme Court's decision in Burlington Northern & Santa Fe Railway Co. v. United States, No. 07-1601, -U.S.- (U.S. May 4, 2009) ("BNSF"), this post will discuss the implications of this decision on arranger liability.
Burlington Northern & Santa Fe Railway Co. v. United States: The Supreme Court Clarifies the Requirements for "Arranger" Liability and Allocation of Liability in CERCLA Cases - Part II.
Burlington Northern & Santa Fe Railway Co. v. United States: The Supreme Court Clarifies the Requirements for "Arranger" Liability and Allocation of Liability in CERCLA Cases - Part I.