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Federal Environmental Law Archives

Under CERCLA, Responsible Parties Liable for Future Clean-Up Costs

In State v. Solvent Chemical Co., 10-2026-cv (2nd Cir. Dec. 19, 2011), the Second Circuit Court of Appeals held that Solvent Chemical Company ("Solvent") could obtain a declaratory judgment that two adjacent property owners were responsible for future costs incurred by Solvent under the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. §§ 9601-9675.

Environmental Groups Denied Intervention in Suit Regarding RCRA Consent Decree

The federal Court of Appeals, D.C. Circuit recently denied three environmental groups' motion to intervene in a lawsuit between the District of Columbia ("District") and Potomac Electric Power Company and Pepco Energy Services, Inc. (collectively, "Pepco"), which concerned a consent decree under the Resource Conservation and Recovery Act ("RCRA") entered into between the District and Pepco. See District of Columbia v. Potomac Electric Power Co., Civ. No. 11-00282. (D.D.C. Dec. 1, 2011).

Generalized Community Knowledge Does Not Trump Expert Conclusions

The Appellate Division of New York State Supreme Court, Third Department, upheld a lower court decision that it was improper for a local planning board to deny a special use permit based on "generalized community knowledge" in opposition to a development proposal, when an unchallenged expert report concluded that the proposal would not harm the environment.

Court Must Hear Citizen Suit Case to Force River Clean Up under Administrative Consent Order

The U.S. Court of Appeals for the Third Circuit recently held that the U.S. District Court for the District of New Jersey could not abstain from hearing a citizen suit case brought under both the federal Clean Water Act and the federal Resource Conservation and Recovery Act, and which sought an injunction requiring the defendant to clean up the Raritan River.

Sole Shareholder of Company that Owned Contaminated Site Found Liable as a "Current Operator" under CERLCA

In Litgo New Jersey, Inc. v. Martin, 2011 U.S. Dist. LEXIS 2033 (D.N.J. Jan. 7, 2011) (denying Motion for Rehearing), the sole shareholder of company (a single-purpose entity) that owned a contaminated property was found liable as a "current operator" under CERCLA § 107(a) because he had "actual control over the day-to-day operations on the [property], including oversight and control over remedial activities carried out by [environmental remediation companies]." 

U.S. Supreme Court Refuses to Hear Attack on CERCLA's Constitutionality

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").

Failure to Specify Specific Contaminant in Notice of Intent to Sue Kills RCRA Claims

The Second Circuit Court of Appeals threw out two claims under RCRA for failure to specify the specific contaminants alleged to cause the complained-of harm in the Notice of Intent to Sue.

Circumstantial Evidence May Not Always Be Enough to Establish "Arranger" Liability under CERCLA.

In DVL Inc. v. General Electric Co., 2010 U.S. Dist. LEXIS 128810 (N.D.N.Y. Dec. 6, 2010), the United States District Court for the Northern District of New York clarified what constitutes proper use of circumstantial evidence to establish "arranger" liability under CERCLA § 107(a)(3). 

The Ninth Circuit's decision holding a permittee is not an "Owner" for purposes of CERCLA liability rejects the Second Circuit's test.

In City of Los Angeles v. San Pedro Boat Works, -F.3d- (9th Cir. Mar. 14, 2011), the Ninth Circuit held that the holder of a revocable permit to operate a boat works, which is a facility for repair, maintenance and rebuilding of ships and boats, is not an owner for purpose of determining who is a PRP under CERCLA. 

U.S. District Court imposes CERCLA liability on U.S. as an arranger and an operator of a western mining operation.

In a case decided earlier this month from the U.S. District for Idaho, the Court imposed arranger and operator liability on the United States based on its permitting procedures and requirements at mining operations on federal lands. Nu-West Mining Inc. v. United States, Case No.: 4:09-CV-431 (D. Idaho March 4, 2011). The subject site is located in the Caribou National Forest in Idaho where there are four phosphate mines. The facts were that, in 1949, the U.S. leased out the right to mine to private companies, and, as part of the lease, the lessees had to obtain approval of plans for mining, waste disposal and reclamation. After the lessee received that approval, the U.S. performed inspections to ensure the lessee was properly disposing of mining waste and paying full royalties to the U.S., and also monitored environmental conditions at the mining sites, including water quality sampling. 

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