The U.S. Supreme Court recently decided Atlantic Richfield v. Christian, a Superfund case involving landowners who sought to use state law claims to compel Atlantic Richfield, the successor by merger to a copper smelting company, to perform a more extensive cleanup than federal regulators had required under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). While formally remanding the landowners’ claims to state court for further evaluation because the claims require the federal EPA’s permission to meaningfully proceed, the decision emphasizes the EPA’s continued primacy in remedial decision making. The decision should give a measure of comfort to parties performing federally supervised cleanups. But parties still may be vulnerable to state court claims by landowners that convince the EPA that the remedies they request do not threaten overall cleanups.
Continue Reading Three Takeaways from Atlantic Richfield Supreme Court Decision Emphasizing EPA Primacy in Remedial Decision Making

Federal officials often conduct unannounced, sometimes intrusive inspections of regulated entities, which can be a major disruption to companies’ operations and has historically left them with little to do about it but wait for the interruption to pass – until now. The Office of Management and Budget (OMB) and the U.S. Environmental Protection Agency (EPA) recently issued two documents aimed at improving the efficiency and normalizing the process of conducting environmental inspections and investigations.
Continue Reading Regulated Entities: It’s Time to Speak Up if You Don’t Like How Federal Agents Come Knocking

Everyone knows that environmental cleanups are complicated. Sites can be geographically vast and varied, involve operations that have released chemicals over decades, and goal posts for how and what should be investigated, characterized, and – if necessary – remediated can change over time. The U.S. Supreme Court recently granted certiorari in a case that could potentially throw remediation efforts at Superfund sites around the country – as Atlantic Richfield (the petitioner) put it – into “chaos.”
Continue Reading SCOTUS Will Review EPA’s Authority to Control Superfund Cleanups at Company’s Request

Developing renewable energy on contaminated lands has proven to be both effective and cost-effective for companies pursuing a new solar or wind energy project. The utility-scale solar farm constructed on the 120-acre Reilly Tar & Chemical Corporation Superfund site is a great example, and there are thousands more that are ripe for redevelopment.
Continue Reading Three Strategies to Develop Renewable Energy Projects on Potentially Contaminated Lands

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