1
Q
CERCLA
A
- 1980
- retrospective - focuses on liability rather than regulation (although winds up having prospective effect because the liability terms are so harsh that people want to avoid falling into it)
2
Q
CERCLA Passage
A
- passed just after Reagan was elected + Senate turned Republican for the first time in decades -> theoretically, this should’ve been a dead duck senate and they should’ve done nothing, but instead passed w/ bipartisan support
3
Q
CERCLA - Significance
A
- imposed a tax on petro-chemical industry (fund the superfund)
- federally-funded cleanup of priority hazardous waste sites in all 50 states
- liability of potentially responsible parties (PRPs) for cleanup costs
4
Q
CERCLA Liability
A
- Standard of liability: strict
- scope of liability: potentially joint/several
- limits on judicial review
5
Q
Superfund Tax
A
- passed as part of original CERCLA in 1980 but ended in 1995
- Money after this ended from lawsuits and Section 106
BUT recently reinstated:
- Infrastructure Investment and Jobs Act of 2021 reinstated chemical tax through 2032 at a higher rate
- Inflation Reduction Act of 2022 - permanently reinstated crude oil and imported petroleum products tax at a higher rate
6
Q
CERCLA Section 101
A
- Definitions
- “hazardous substance” (substance, not waste) -> encompasses hazardous waste from RCRA, toxic pollutants from CWA, hazardous air pollutants from CAA, and a couple other acts then adds its own catchall (although doesn’t include petroleum)
- also defines “release” - doesn’t include normal application of fertilizers, but DOES include leaking (important b/c passive, doesn’t require any activity by operator)
7
Q
Release Definition
A
- includes spilling, leaking, pumping, pouring, emitting, emptying, discharging, leaching, dumping, disposing, injecting, escaping, + leaching
8
Q
CERCLA Section 104
A
- gives cleanup authority to Pres (political compromise -> delegated to EPA after statute passed)
- can “remove or arrange for the removal of and provide for remedial action” whenever a hazardous substance is released or there’s a substantial threat of release (remedial action = permanent remedy)
9
Q
CERCLA Section 105
A
- National Contingency Plan
- National Priorities List - identifies the worst sites around the country
- more likely to get cleaned up if listed, but also concern re property (people sometimes resist listing)
- by statute, there needs to be a certain number of sites in each state
10
Q
CERCLA Section 106
A
- enforcement authority
- when there “may be an imminent and substantial endangerment to the public health or welfare or the environment” b/c of “actual or threatened release of a hazardous substance,” EPA can bring lawsuit or issue administrative order to address the threat
- technically doesn’t say WHO you can sue/order though + also missing standard of liability (what do they need to have done? Is it strict or negligence?)
11
Q
CERCLA Section 107
A
- Potentially Responsible Parties and Cost Recovery Actions
- technically says who the potentially responsible parties are for only 107, but gets extended to 106 by courts
12
Q
CERCLA 107 - PRPs
A
4 categories:
- owner
- past owners and operators
- generators (those who arranged for disposal)
- transporters
Note that generators are most likely to have the $
13
Q
CERCLA 107 - Liability Standard
A
- references CWA oil spill standard (political compromise) -> strict liability
14
Q
CERCLA Cost Recovery Actions
A
Liable for:
- all costs of removal or remedial action incurred by a sovereign
- any “other necessary costs of response incurred by any other person” (tends to be current owners)
- damages for injury to, destruction of, or loss of natural resources
15
Q
Section 107 Defenses
A
Originally very limited - only if release of haz substance + damages caused solely by:
- act of God
- act of war
- act or omission of a third party (can’t be anyone you have a relationship with though, ie. contractor or subcontractor, could be random trespasser)
16
Q
Cleanup Orders
A
- under Section 106
- you get fined $25,000 per day for every day you fail to comply with the order
17
Q
Treble Damages
A
- if you don’t comply with a 106 cleanup order and the gov turns around and cleans it up then sues you for the cleanup costs, you have to pay three times the damages
18
Q
Why don’t parties challenge orders?
A
Automatic rxn WOULD be to challenge the gov’s cleanup order, but Section 113(h) limits judicial review -> you don’t get judicial review UNLESS:
- you’re being sued under 107 for response costs
- there’s an action to enforce the 106 order or collect on your penalties
- action for reimbursement under 106(b)(2)
- action under section 310 (citizen suit) alleging removal/remedial action under 104 in violation of the Act
- action under 106 in which US moved to compel remedial action
Basically, you can’t sue preemptively and if you’re wrong you’d have to pay a TON of money (treble damages under 107 + 106 fines)
19
Q
Why limited judicial review for CERCLA?
A
- didn’t want people to be able to sue preemptively b/c national emergency - imminent danger means no time for lawsuits
20
Q
Summary of CERCLA Strictness
A
- industry needs to pay tax to fund hazardous waste cleanup
- industry strictly liable for cleanup of hazardous waste sites on a retroactive basis (no matter how reasonable conduct + no matter if paid for best cleanup)
- industry subject to unilateral government orders to clean up that they can’t challenge in court in first instance + if they fail to comply, potentially subject to treble damages
21
Q
Facility Definition
A
- basically anywhere there’s a hazardous substance
22
Q
Innocent Landowner Defense Issue
A
- originally, under CERCLA, there was no cause requirement on the liability - even if you’re just a passive unknowing owner, you can be held liable
23
Q
CERCLA Section 101(35)
A
- Congress adds this to deal with the innocent landowner defense
- you get a defense if at time you acquired the facility you didn’t know + had “no reason to know” that the haz substance was disposed there -> “reason to know” depends on who you are + what’s happening with the property (101(35) actually defines this -> need to be able to show you carried out “all appropriate inquiries” + took reasonable steps to prevent the release)
24
Q
CERCLA Section 107(a)(2) - Past
A
- past owners/operators - for the past component, you need to have owned at time of disposal, but the disposal could just be leaking (if the active thing occurred before you owned it but leaking occurred while you owned it, you’re still liable)
25
CERCLA Section 107(a)(2) - Operator Legal Issues
- capacity to control ops vs. actual exercise of control of ops
- facility overall ops vs hazardous waste management ops in particular
- shareholder liability for corporation liability ("piercing the corporate veil")
- applicability of corporate law limitations on liability to CERCLA liability
- federal common law principles of corporate liability limitations or state law principles of corporate liability limitations
26
Corporate Liability and CERCLA
- fed gov initially said NO corporate liability limitation principles applied - argument was that CERCLA only listed 3 defenses, so this preempted common law liability limitations for corporations
- BUT EPA finally lost in 6th Circuit with Bestfoods in 98 (courts start being more willing to challenge EPA on CERCLA after the statute has done some work and the emergency aspect wanes a bit)
27
United States v. Bestfoods
- SCOTUS, 1998
- rejects the idea that liability limitations don't apply - basic reasoning is that they're too economically important for them to be preempted in this way
- so, parent corp CAN'T be held liable merely for actively participating in and exercising control over a subsidiary
- BUT corp CAN be held liable if actively participated in and exercised control over the operations of the facility itself -> this makes the corporation an operator for liability purposes
- Major change b/c reigned in CERCLA a bit
28
Standard for Corporate Operator under Bestfoods
- in order to be an operator, need to evaluate whether, "in degree and detail," actions directed to facility by agent of parent alone "are eccentric" under accepted norms of parental oversight of a subsidiary's facility
29
CERCLA Arranger Liability Issues
- meaning of "disposal" and "useful" products (recycling issue)
- meaning of "arranging" (knowledge, authority, + exercise of authority)
- choose site "the" site where hazardous substances now located vs. choose "a" site (winds up being A site)
- evidence substances are arrangers (EPA wins on this - doesn't need to fingerprint + definitively prove it's your waste)
30
United States v. Chem-Dyne Corp.
- 1983, District Court (S.D. Ohio)
- says joint + several liability in CERCLA
- there was conflicting legislative history, but judge said sponsors said it was in
- plus sites are a big mess - you can't possibly sort out, so joint and several makes sense
31
Contribution Protection
- whoever EPA sues can then sue others for contribution
- bit unusual - j + s exists b/c it's such a mess you can't possibly apportion it, but contribution ultimately requires allocation on equitable factors
32
Section 122(f) CERCLA
- Settlements - if you settle with the US or a state, you can't be liable for contribution for matters addressed in the settlements + you can seek contribution from others who weren't party to the settlement
- companies actually wind up settling + creating groups to clean up the sites - thought they could do it more cheaply
- EPA + public ultimately happy because fast clean-up
33
Plight of the Arranger/Generator
- pays once for the og disposal
- pays again for the superfund tax
- pays a third time for CERCLA 106 order/107 cost recovery action (no pre-enforcement right to judicial review + threat of treble damages if you're wrong in challenging)
34
Rationale for Joint and Several Liability in CERCLA
- sites typically several hundred arrangers, exceedingly limited records, fires + nearby waters, leaking drums, storage tanks, surface/underground
- no reasonable basis (volume, hazardousness, time/space all unrealistic)
- indivisible injury (one site, + no physical access)
- limited proof of connection to site (A site, not the site, w/ waste like yours, not your waste)
35
Additional Congressional Exceptions
- recycling (Section 127) - specifies certain things that qualify as arranging for recycling rather than disposal
- de micromis exception (Section 107(o)) - such a small amount that you're not held jointly and severally liable
- municipal solid waste exception (lots of volume but low hazard)
36
Brownfields
-Section 107(r)
- Congress adds this to try and incentivize development at brownfields
- allows for purchase w/ limits on liability
37
CERCLA in SCOTUS
- takes a long time to get there - no cert grants until 28 yrs in because not really circuit conflicts
38
Burlington Northern v. U.S. & Shell Oil v. U.S. - Facts
- 2009
- B&B bought chemicals from Shell + used them at the site to create a product they were gonna sell, but a LOT of the chemical spilled at the site
- B&B now bankrupt -> US goes after Shell and Burlington (B&B had leased some of their land) under theory of joint and several liability
- unusual site in that you have limited # of parties
39
Burlington Northern - Procedural Posture
- Shell @ District Court - tried to argue not an arranger, just selling a useful product (knew incidental spill but argued that's not enough)
- District Court ruled Burlington and Shell both liable, landowner and arranger respectively, but there WAS a reasonable basis for apportionment
- 9th Circuit says District Court should've done joint and several (not enough basis for apportionment)
40
Burlington Northern - Shell Arguments on Arranger
- ordinary meaning of "arranged for" requires intentional disposal of haz waste
- ordinary meaning of "disposal" limited to waste, and not extension to delivery of useful product
- liability limited to haz waste "owned or possessed," which requires actual control
41
Burlington Northern - Decision on Arranger
- arrange requires intent, knowledge not enough (plain language of statute - arrange for disposal)
- strange though b/c court means design + purpose here, but technically knowledge to a substantial certainty WOULD have been enough under traditional tort law
- main result: limiting liability in legit sale of useful products
42
Burlington Northern - Decision on Joint and Several
- SCOTUS said there WAS reasonable basis for apportionment
- keep in mind apportionment more technical (can't just be equitable)
43
Burlington Northern - Significance
Arranger liability: specific intent required
- knowledge alone insufficient
- need specific intent: purpose/plan disposal
Joint & Several Liability
- emboldens reasonable apportionment argument
- allows for rough estimates
- allows for significant factual uncertainty
44
Atlantic Richfield v. Christian - Facts
- 2020
- hole w/ a hazardous waste site in the middle of Butte, Montana
- 1983, EPA ordered cleanup, still ongoing
- basically, the MT landowners had tried a common law suit to get more of a remedy than EPA was doing
- 113(h) says no fed court shall have jurisdiction - doesn't say anything about state courts
45
Atlantic Richfield v. Christian - Decision
- SCOTUS says the landowners are actually PRPs (doesn't matter that the 6 yr statute of limitations has run, they weren't notified of settlement, + they own contiguous land)
- as PRPs, landowners can't undertake remedial action at the facility absent EPA authorization (122(e)(6))
- CERCLA savings clause of state law not to the contrary
46
Atlantic Richfield - CERCLA Savings Clause
- preserves state common law damages remedy
- doesn't overcome bar on remedies with potential to interfere with federally mandated cleanup
- federal cleanup remedies account for and don't run roughshod over state law
47
Guam v. US - Facts
- 1940 Ordot Dump commenced operations
- wound up having haz waste dumped by Navy
- EPA places the site on the national priorities list in 1983 + orders Guam to clean up in 1986
- 1988 EPA identifies Navy as PRP -> EPA says CERCLA cleanup "inappropriate" + goes to CWA (US immune under CWA)
- 2002 EPA sues Guam under CWA
- 2004 Guam settles CWA lawsuit
- 2017 Guam files CERCLA complaint against Navy based on $16 million remediation costs
48
Guam v. US - Procedural Posture
- DC Circuit says Guam settlement w/ EPA qualifies under CERCLA as a remedy -> means its suing Navy under 113 for contribution, but stat of lim has already run out on this
Environmental Law
flashcards
Decks in class (17)
# Cards
-
RCRA32
-
CERCLA48
-
Household Ash Issue11
-
Coal Ash Issue22
-
Regulatory Takings9
-
Clean Air Act58
-
Clean Air Act Part 226
-
Control of GHG Emissions at Existing Power Plants31
-
Motor Vehicles Under CAA21
-
Hazardous Air Pollutants29
-
Interstate Air Pollution31
-
Water Pollution62
-
CWA - Discharge35
-
Entergy8
-
Limits and General Permits22
-
Water Quality Kickers24
-
Wetlands9
