CERCLA/RCRA

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Flexibility for Transactional and Regulatory Requirements in the Wake of COVID-19

In a little over a couple of months, the COVID-19 outbreak has dramatically altered the landscape of business. Companies are struggling to cope with massive uncertainty and an array of unforeseen challenges, including everything from supply chain and revenue disruptions caused by reduced consumer demand, to staffing shortages, travel restrictions, business closures, and other such … Continue Reading

We Finally Have the US Supreme Court Decision in Atlantic Richfield, But Who Really Won?

On April 20, 2020, the US Supreme Court issued its much-anticipated decision in Atlantic Richfield Co. v. Gregory Christian. In short, the Court held that the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA) does not strip Montana state courts of jurisdiction over landowners’ claims for restoration damages; but the Court also held … Continue Reading

US EPA Issues New Guidance for Hazardous Waste Cleanup & Emergency Response Sites Impacted by COVID-19

On April 10, 2020, US EPA issued updated interim guidance to regional offices for dealing with the “challenges posed by the COVID-19 situation.” The guidance applies to all US EPA field activities, including cleanup under the Superfund program, RCRA corrective action, TSCA PCB cleanup provisions, the Oil Pollution Act, and the Underground Storage Tank program. … Continue Reading

US Supreme Court Grapples with Balancing Landowners’ Rights Against CERCLA Authority

Two months ago, the US Supreme Court heard oral arguments in Atlantic Richfield Co. v. Gregory Christian. The case is critically important to environmental lawyers in the United States because it may alter the operation of Congress’s Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) scheme for environmental remediation. CERCLA gives EPA broad … Continue Reading

DC Circuit Upholds US EPA Decision Not to Issue New Financial Assurance Requirements for the Hardrock Mining Industry

On July 19, 2019, the D.C. Circuit issued its decision in Idaho Conservation League v. Wheeler, upholding US EPA’s decision not to issue financial responsibility requirements for the hardrock mining industry under Section 108(b) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).  The requirements, if adopted, would have cost the hardrock mining industry … Continue Reading

US BUILD Act Clarifies Tenant Standing for Bona Fide Prospective Purchaser Protections from Contaminated Property Liability

When President Trump signed the omnibus spending bill on March 23, 2018, he also enacted the Brownfields Utilization, Investment, and Local Development Act of 2018 (BUILD Act) (not to be confused with the Better Utilization of Investments Leading to Development Act of 2018—yet another BUILD Act of 2018). Among the several provisions within the BUILD … Continue Reading

Groundwater Remediation as Potential Tool to Combat Water Scarcity: Navigating Potential Conflicts Between CERCLA Remediation Considerations and Water Policy Issues

New water supplies in the western United States are likely to come from a panoply of non-traditional sources, including storm water capture, waste water recycling, desalination, infrastructure efficiency improvements, and other conservation measures. One potential new water source for municipalities is contaminated groundwater requiring environmental remediation, that, but for its low quality, could be used … Continue Reading

US EPA Revises RCRA Definition of Solid Waste Rule to Comport with D.C. Circuit Rulings

On May 30, 2018, US EPA issued a final rule to revise the regulations associated with the 2015 Definition of Solid Waste (DSW) Rule.  US EPA performed this rulemaking to bring the regulations in line with the D.C. Circuit’s 2017 and 2018 rulings in American Petroleum Institute v. EPA (Case No. 09-1038), which vacated and … Continue Reading

D.C. Circuit Further Clarifies the RCRA Definition of Solid Waste Rule Ruling

On March 6, 2018, the D.C. Circuit Court of Appeals modified its 2017 ruling in American Petroleum Institute v. EPA, No. 09-1038, concerning US EPA’s Definition of Solid Waste (DSW) Rule under the Resource Conservation and Recovery Act (RCRA), which defines when hazardous recyclable materials are excluded from regulation as hazardous waste.  The end result … Continue Reading

Navigating the “No Affiliation” Requirement to Bona Fide Prospective Purchaser CERCLA Liability Protection

­An important consideration for purchasers of US commercial property is establishing Bona Fide Prospective Purchaser (“BFPP”) liability protection to mitigate the risk of liability under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), 42 U.S.C. § 9601 et. seq.   Because the current owner of a property where a release of hazardous substances has occurred … Continue Reading

US EPA’s Superfund Task Force Recommendations May Expedite Cleanup and Reuse Process for Contaminated Sites

Shortly after being confirmed as the new US EPA Administrator, Scott Pruitt appointed a Superfund Task Force to review the approximately 1,300 Superfund sites in the United States and make recommendations on how to improve and restructure the cleanup process. Administrator Pruitt observed that “many of these sites have been listed as Superfund sites for decades, some … Continue Reading

D.C. Circuit Strikes Down Portions of the RCRA Definition of Solid Waste Rule

On July 7, 2017, the D.C. Circuit Court of Appeals issued a decision striking down portions of US EPA’s Definition of Solid Waste (DSW) Rule, which defines when certain hazardous secondary materials (i.e. recyclable materials generated as the remainder of industrial processes) become “discarded” and thus subject to regulation as a solid waste.  The Rule, … Continue Reading

Squire Patton Boggs Helps Secure a Victory for the State of Colorado at the US Supreme Court

On June 26, the US Supreme Court denied New Mexico’s petition seeking to institute an original action against Colorado for the 2015 Gold King Mine spill. An original action in the US Supreme Court is a lawsuit between states. Invoking that rarely used procedure, New Mexico sought to hold Colorado liable for the Gold King Mine spill.  … Continue Reading

Superfund Financial Assurance Rules: Chemical, Coal, Petroleum & Electric Power Industries Face Upcoming US EPA Rulemaking

On December 1, 2016, the US EPA Administrator signed two documents about financial assurance – effectively bonding for facility cleanup – under Superfund for several industry sectors. The longer document with the shorter deadline concerned the hard rock mining and mineral processing industries, proposing specific costly rules, on which comments are due around March 13.  … Continue Reading

Asbestos-Containing Materials: A Non-Scope Consideration Worth Investigating During Environmental Due Diligence

A common question that arises when performing environmental due diligence on commercial real estate is the degree to which the presence of asbestos-containing materials (ACMs) should be investigated.  In the case of ACMs, “what you don’t know can hurt you” and, therefore, the old axiom of “less is more” does not apply.  This is especially true regarding asbestos not only … Continue Reading

Involved with US Export and Import of Hazardous Waste? New Requirements Are Coming

On November 28, 2016, US EPA published its Final Rule revising the requirements applicable to the export and import of hazardous wastes to and from the United States.  The changes enacted by US EPA make three significant revisions to existing regulations by: Aligning existing export and import related requirements with the current import-export requirements for … Continue Reading

Ninth Circuit Rules Smelter Emissions Are Not a CERCLA Disposal

The Ninth Circuit’s recent opinion in Pakootas v. Teck Cominco Metals, Ltd., addressed whether, “[w]hen a smelter emits lead, arsenic, cadmium, and mercury compounds through a smokestack and those compounds contaminate land or water downwind, . . . the owner-operator of the smelter [can] be held liable for cleanup costs and natural resource damages under … Continue Reading

When to Consider “Non-Scope Considerations” in Environmental Due Diligence

Performing thorough environmental due diligence for commercial and industrial property acquisitions requires consideration of diverse risks to a prospective purchaser. Such diligence generally includes a Phase I environmental site assessment performed under ASTM Standard Practice E1527-13 (ASTM E1527-13), which is designed to investigate the possibility of hazardous substance or petroleum product releases at a commercial property—the presence of which … Continue Reading

Despite Best Efforts, US EPA Faces 2016 Deadline for New Financial Assurance Rules

US EPA has agreed to promulgate financial assurance rules for hard rock mining companies by December 1, 2017.  Specifically, the agencies requirements will apply to facilities which extract or process metals (e.g., copper, gold, iron, lead, magnesium, molybdenum, silver, uranium, and zinc).  The financial assurance requirements will obligate companies performing environmental cleanup to provide a … Continue Reading

US EPA Proposes to Include Vapor and Other Subsurface Intrusions Component to NPL Hazard Ranking System

US EPA may make a significant change to the Hazard Ranking System, the system utilized to determine which sites are eligible for inclusion on the Superfund National Priorities List (NPL).  (See the proposed rule here.)  Currently, the Hazard Ranking System evaluates four exposure pathways when determining eligibility:  ground water migration, soil exposure, surface water migration, … Continue Reading

The Air (Emissions) of Spring May Soon Give Rise to Unprecedented CERCLA Liability

As 2015 came to a close, the Ninth Circuit Court of Appeals quietly notified the parties in a decades-long environmental dispute that, in April 2016, the court will hear arguments in a case that could reshape CERCLA liability forever.  The basis for the pending appeal is a district court order holding that air emissions could … Continue Reading

Republicans and Democrats Push for Hardrock Mining Reform in the Wake of Colorado Mine Spill

Congress is moving quickly on multiple fronts in response to the August 2015 spill at the abandoned Gold King Mine in Colorado.  Republicans in the House held a hearing on a package of mining reform bills proposed by Rep. Lamborn (R-CO), Rep. Hice (R-GA), and Rep. Hardy (R-NV) that would, respectively, promote private sector remediation … Continue Reading
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