Urban agriculture is exploding in cities - large and small - throughout the nation. In many cities, local land use laws and zoning ordinances are being amended or drafted to support this new-found passion. But with precious "green" space in cities (and rooftops in limited supply), many urban farmers may be forced to turn to contaminated spaces, i.e., brownfields, for their farming needs. But can these farmers ensure that these brownfield spaces are clean enough; how clean should soil be to be clean for farming?
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").
Our last post discussed the Second Circuit's recent decision in Niagara Mohawk v. Chevron, 596 F.3d 112 (2d Cir. Feb 24, 2010). We left off when the District Court was about to review its prior decision in light of the Supreme Court's decision in Cooper Industries v. Aviall Services ("Aviall").
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.
While pollutants commonly found in door air are responsible for many harmful effects, there is considerable uncertainty about what concentrations or periods of exposure are necessary to produce specific health problems. People also react very differently to exposure to indoor air pollutants. Comprehensive worker protections provided pursuant to OSHA, discussed below, are not considered particularly stringent. Where there have been competing regimes, whether by EPA or state agencies, these agencies have generally set standards that are occasionally orders of magnitude more stringent than those set by OSHA.