In February, presidential advisor Steve Bannon stated that a primary goal of the Trump administration was the “deconstruction of the administrative state.” One feature of the administrative state is “administrative deference,” which involves courts deferring to federal agencies’ interpretations of federal statutes – a topic that we have discussed repeatedly in the past few months,  see here and here. Continue Reading Are We Facing the Decline of Chevron Deference and an Article III Renaissance?

Under a recent summary judgment decision from a federal district judge, the EPA must continuously examine the effects that certain Clean Air Act (CAA) regulations have on employment in the coal industry specifically and other industries more broadly. This means the EPA will be subject to increased requirements before taking action under the CAA. The ruling also suggests that additional requirements could be imposed on the EPA under similar provisions in other environmental statutes, such as the Clean Water Act, the Toxic Substances Control Act, the Solid Waste Disposal Act, and CERCLA. Continue Reading EPA Must Examine Effects of Clean Air Act Regulations on Jobs

May 13, 2015

1:00 – 6:00 p.m. CT

Schiff Hardin partner Gabriel Rodriguez will welcome attendants to the ABA Section of Litigation Regional Workshop entitled “Litigating a CERCLA Allocation Case – Pre-Trial Strategies and Trial Techniques.” The workshop panelists will include a Judge from the United States District Court for the Northern District of Illinois, two nationally recognized experts with significant experience in these matters, and several seasoned trial counsel. A networking reception for all speakers and attendees will follow the programs. Continue Reading Litigating a CERCLA Allocation Case – Pre-Trial Strategies and Trial Techniques CLE Regional Workshop

The Supreme Court recently denied certiorari of a Seventh Circuit opinion permitting parties to challenge “completed” phases of a staged remediation under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), even where work in subsequent stages remains ongoing.  The decision in Frey v. Envtl. Prot. Agency, No. 13-2142 (7th Cir. May 1, 2014) addressed the contours of the general statement that U.S. EPA’s decisions in an “on-going” remediation may not be challenged under CERCLA.  CERCLA Section 113(h)(4) provides that “[n]o Federal court shall have jurisdiction . . . to review any challenges to removal or remedial action” except during a limited number of actions, none of which allow a plaintiff to challenge an ongoing response action.  42 U.S.C. § 9613(h)(4).  Prior to Frey, courts applying this provision had found that parties are prohibited from reviewing ongoing clean-up activities under CERCLA. Continue Reading Supreme Court Denies Petition Challenging Staged Review of Completed CERCLA Remediation

On September 25, 2014, the Seventh Circuit issued two opinions in litigation related to the Fox River Superfund site in Wisconsin.  The Fox River is a sediment site contaminated primarily with polychlorinated biphenyls (PCBs) from the paper making industry.  In one of these decisions, the Seventh Circuit held that, based on evidence at trial, the environmental harm to the Fox River was theoretically capable of being apportioned among the potentially responsible parties (PRPs), and that a permanent injunction was not an appropriate remedy for enforcing a Unilateral Administrative Order (UAO) under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).  U.S. v. P.H. Glatfelter Co., No. 13-2436, 13-2441 (7th Cir. Sept. 25, 2014). Continue Reading Seventh Circuit Finds Environmental Harm ‘Theoretically Capable’ of Apportionment

A Phase I Site Assessment is used primarily to investigate commercial real estate for environmental conditions.  The American Society for Testing and Materials (ASTM) International provides a Standard Practice for environmental professionals undertaking a Phase I Site Assessment.  Last fall, ASTM International published a revised version of the Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process or “ASTM E1527-13.”   Continue Reading USEPA to Phase Out Use of Older Standard Practice for Site Assessments

On June 9, 2014, the Supreme Court decided CTS Corp. v. Waldburger, holding that a North Carolina statute of repose was not preempted by Section 9658 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Continue Reading Supreme Court Decides CTS Corp. v. Waldburger Evaluating Whether CERCLA Precludes State-Law Statutes of Repose

A recent Seventh Circuit decision addressed the contours of the general statement that USEPA’s decisions in an “on-going” remediation may not be challenged under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”).  CERCLA Section 113(h)(4) provides that “[n]o Federal court shall have jurisdiction . . . to review any challenges to removal or remedial action” except during a limited number of actions, none of which allow a plaintiff to challenge an ongoing response action.  42 U.S.C. § 9613(h)(4).  Generally, courts applying this provision have found that parties are prohibited from reviewing ongoing clean-up activities under CERCLA. Continue Reading Judicial Review of a Superfund Clean-up Can Proceed in Stages

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 “resolved its liability to the United States or a State” in an “administrative or judicially approved settlement” to bring a contribution claim.  A contribution claim must be brought within three years, but circuits have split on how to interpret when the statutory time period begins to run.  On Monday, Jan. 27, the Supreme Court denied certiorari in a case that would likely have addressed this split.  Bernstein v. Bankert, 702 F.3d 964, 981 (7th Cir. 2012), aff’d Nos. 11-1501, 11-1523, 2013 WL 3927712, *1 (7th Cir. July 31, 2013), cert. denied, No. 13-568, 2014 WL 273271 (Jan. 27, 2014). Continue Reading Supreme Court Declines to Review Seventh Circuit Decision on CERCLA Statute of Limitations Issues

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 reports submitted after that date. Continue Reading New EPCRA Tier I and II Inventory Reporting Requirements Effective January 1, 2014