Category Archives: Land/Waste

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Lessons Learned: Negotiating Covenants Not to Sue in Environmental Agreements

Parties that settle environmental claims with the government frequently include covenants not to sue in their settlement agreements. But how does a party ensure that a covenant not to sue prevents the government from suing it again? By negotiating a broad covenant not to sue that contemplates all the ways in which the government may … Continue Reading

Congress Amends RCRA and Establishes a New Coal Ash Permit Program

On December 16, 2016, President Obama signed the Water Infrastructure Improvements for the Nation (WIIN) Act into law. The WIIN Act is heralded as a bill addressing navigation and flood control, and authorizes funding to address drinking water emergencies in communities like Flint, Michigan. Included in the WIIN Act are amendments to the Resource Conservation … Continue Reading

Fracking Debate Moves into Insurance Realm

The gloves are off in a lawsuit in the Southern District of New York where an insurer and an oil and gas company disagree about whether the company’s insurance policy covers claims that fracking causes earthquakes. On June 27, 2016, insurer Lloyd’s sued New Dominion, arguing that the Lloyd’s pollution liability policies do not provide … Continue Reading

Recap: Climate Action Plan Nears Completion

In 2013, President Obama issued the Climate Action Plan. Its goal: to reduce greenhouse gas emissions from a broad range of economic sectors. Moreover, the Climate Action Plan is the key set of initiatives necessary to achieve the United  States’ GHG reduction commitment set out in the 2015 Paris Agreement, an international accord. We covered … Continue Reading

Corps v. Hawkes: Supreme Court Rules Clean Water Act Jurisdictional Determinations are Final and Appealable Agency Actions

In this much-anticipated decision, on May 31, 2016, the U.S. Supreme Court unanimously sided with the property owner companies over the U.S. Army Corps of Engineers (“Corps”). The Court held that a Corps’ jurisdictional determination as to whether a property contains a jurisdictional wetland is immediately appealable because it constitutes a final agency action. This … Continue Reading

Civil Rights Panel to Review EPA’s Coal Ash Disposal Policies on Jan. 22

The U.S. Commission on Civil Rights is holding a hearing on January 22, 2016 to review the environmental justice implications of EPA policies on coal ash disposal. The commission is conducting this review as part of its annual report on agencies’ progress implementing the Civil Rights Act. Rather than surveying the complete executive branch every … Continue Reading

Too Little, Too Late: State Agency’s Enforcement Action Does Not Bar Citizen Suit

On October 20, 2015, a district court held that a state enforcement action brought under the Clean Water Act (CWA) did not bar a citizen suit from proceeding against Duke Energy Carolinas, LLC (Duke Energy). Yadkin Riverkeeper, Inc. v. Duke Energy Carolinas, LLC, Case No. 1:14-cv-753 (M.D.N.C. Oct. 20, 2015).  For regulated industries, Yadkin Riverkeeper is … Continue Reading

Judge Rejects NCR Fox River Divisibility Defense in Reconsideration

Yesterday, a judge in the Eastern District of Wisconsin reversed his own ruling and held that NCR Corporation’s liability for the cleanup of polychlorinated biphenyls (PCBs) at the Fox River Superfund Site was not subject to divisibility.  Last May, the court held that NCR had proven that the environmental harm in Operable Unit 4 of … Continue Reading

Climate Action Plan Takes Shape

The summer of 2015 saw several controversial EPA rulemaking proceedings that will affect the energy, transportation, waste management and construction sectors across the United States.  These rulemakings implement President Obama’s 2013 Climate Action Plan, which has a goal of  reducing greenhouse gas (GHG) emissions to mitigate the impacts of climate change.… Continue Reading

Fifth Circuit Lets Citgo Fly Free

On September 4, 2015, the United States Court of Appeals for the Fifth Circuit overturned Citgo Petroleum Corporation’s two convictions under the Clean Air Act (CAA) and three convictions under the Migratory Bird Treaty Act (MBTA).  The court held that the district court had erred in allowing improper jury instructions and had misinterpreted the MBTA’s … Continue Reading

CERCLA Divisibility Defense Is Alive and Well

On May 15, 2015, the United States District Court for the Eastern District of Wisconsin held that a defendant successfully established a divisibility defense in a government enforcement action dealing with the cleanup of the Fox River Superfund Site in northeastern Wisconsin (the Site).  United States v. NCR Corp., No. 10-C-910 (E.D. Wis. May 15, … Continue Reading

The Wait is Over – EPA publishes the Disposal of Coal Combustion Residuals from Electric Utilities Rule

EPA today published in the Federal Register its Final Rule for Disposal of Coal Combustion Residuals from Electric Utilities (commonly known as the CCR Rule). The rule is now official and the clock starts for compliance deadlines and the filing of challenges. The rule becomes effective on October 14, 2015, six months after publication. Parties … Continue Reading

EPA Expands the Definition of Solid Waste Rule

The United States Environmental Protection Agency (EPA) is cracking down on alleged sham recycling with the issuance of a final “Definition of Solid Waste” Rule. The rule aims to reestablish hazardous waste restrictions eased by the Bush administration in 2008. Rulemaking on the Definition of Solid Waste, Pre-Publication version (Dec. 9, 2014) (to be codified … Continue Reading

EPA Regulates Coal Combustion Residuals from Coal-Fired Power Plants as Subtitle D Solid Waste

On December 19, 2014, the U.S. Environmental Protection Agency (EPA) issued a 745-page prepublication version of its final rule governing the landfill and surface impoundment management of coal combustion residuals (CCR) from coal-fired power plants. The rule is to become effective six months from the date of its publication in the Federal Register (expected to … Continue Reading

IDNR Issues Proposed Final Fracking Rules

The Illinois Department of Natural Resources (IDNR) on August 29, 2014 filed proposed rules that if adopted, will create additional burdens on companies seeking to extract natural gas in Illinois.  The proposed rules, filed with the Joint Committee on Administrative Rules (JCAR), represent IDNR’s final rules implementing the Hydraulic Fracturing Regulatory (Act), the comprehensive law … Continue Reading

Ninth Circuit Holds that Railyard Emissions are Outside the Scope of Federal Regulation

The United States Court of Appeals for the Ninth Circuit on August 20, 2014 determined that emissions of diesel particulate matter from a railyard were not regulated under the Resource Conservation and Recovery Act (RCRA).  In Center for Community Action and Environmental Justice, et al, v. BNSF Railway Co., et al, (Case No. 12-56086), the … Continue Reading

USEPA Takes First Step Toward Possible Federal Regulation of Hydraulic Fracturing

On May 9th the United States Environmental Protection Agency (USEPA) initiated a process that may result in federal regulation of the fluids used in hydraulic fracturing (fracking).  In the past 10 years, United States production of oil and gas has skyrocketed, due in part to the increased use of fracking technologies that use high‐pressure injection … Continue Reading

EPA Commits To Take Final Action on Coal Ash Regulations

On January 29, 2014, the U.S. Environmental Protection Agency (US EPA) entered into a Consent Decree committing to take final action by December 19, 2014 on coal ash disposal regulations under the Resource Conservation and Recovery Act (RCRA). In 1993 and 2000 US EPA commenced and completed Bevill Amendment determinations regarding the regulation of the … Continue Reading

Supreme Court Declines to Review Seventh Circuit Decision on CERCLA Statute of Limitations Issues

The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) provides two ways of recovering costs spent on cleaning up a contaminated site from other potentially responsible parties (PRPs).  One way to recover these costs is through a contribution claim under Section 9613(f) of CERCLA.  42 U.S.C. § 9613(f).  Section 9613(f)(3)(B) allows a party that has … Continue Reading

No Emergency: The Proposed Illinois Petcoke Rules Will Proceed as a General Rulemaking

On January 23, 2014, the Illinois Pollution Control Board (Board) declined to adopt the Illinois Environmental Protection Agency’s proposed coke and coal bulk terminals rule, also referred to as the petroleum coke or “petcoke” rule, for emergency rulemaking.  The Board found that no emergency exists that requires adopting the rule under the emergency rulemaking process.  … Continue Reading

IEPA Proposes Emergency Petcoke Rules to the Illinois Pollution Control Board

On Thursday, January 16, 2013, the Illinois Environmental Protection Agency (IEPA) filed a proposal and motion for emergency rulemaking regarding the containment of coke (also referred to as petroleum coke, or petcoke) and coal at bulk terminals with the Illinois Pollution Control Board (Board).  In the proposed rule, IEPA asserts that fugitive emissions emanating from … Continue Reading

New EPCRA Tier I and II Inventory Reporting Requirements Effective January 1, 2014

On July 13, 2012, the United States Environmental Protection Agency promulgated a rule requiring new and revised data elements for Emergency Planning and Community Right-to-Know Act (EPCRA) Tier I and Tier II inventory reports.  The changes required by this rule become effective on Jan. 1, 2014, and apply to Tier I and Tier II inventory … Continue Reading

Second Circuit Issues Opinion Addressing “Remedial” vs “Removal” Actions Under CERCLA

As a statute, the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) hinges on a variety of definitions which courts have applied inconsistently to cases since CERCLA passed. On October 15, 2013, the Second Circuit issued an important opinion that contrasted “removal” versus “remedial” activities under CERCLA.  New York v. Next Millennium Realty, LLC, No. … Continue Reading

Fourth Circuit Decides Key CERCLA Allocation and Liability Case

The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) is a federal statute that, among other things, allows parties to allocate environmental remediation costs among parties whose operations may have resulted in environmental contamination.  CERCLA cases with multiple potentially responsible parties (PRPs) generally proceed in two phases.  During the first phase — the “liability” phase — … Continue Reading