In a back and forth battle with the United States District Court for the Northern District of Arizona regarding the scope of judicial power under RCRA, the Ninth Circuit last week reopened three interest groups’ citizen suit claims against the U.S. Forest Service. In Ctr. for Biological Diversity v. U.S. Forest Serv., No. 17-15790, 2019 WL 2293425 (9^th Cir. May 30, 2019), the plaintiffs allege that the use of lead ammunition creates an imminent and substantial endangerment to human health and the environment in the Kaibab National Forest, which borders Grand Canyon National Park in northern Arizona. Reversing the district court, the Ninth Circuit held that the controversy is justiciable because it would allow the district court to issue meaningful injunctive relief and not merely an advisory opinion. Read More »

Share | Email| Comments|  Topics: Arizona, Citizen Suit, Endangered Species Act, Forest Service, Injunction, Ninth Circuit, Public Lands, RCRA

On January 15, the United States District Court for the Central District of California granted Defendants’ Motion for Summary Judgment in Arconic, Inc., et al. v. APC Inv. Co., Case No. CV-14-6456-GW (C.D. Cal. Jan. 15, 2019), ruling that Plaintiffs’ contribution claims under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) Section 113(g)(3) were barred by the applicable three-year statute of limitations. What makes the decision noteworthy is that the Court found that the limitations period began to run ten years before the Plaintiffs entered into the Consent Decree with EPA and the State of California to undertake the remediation giving rise to the contribution claim. Read More »

Share | Email| Comments|  Topics: California, CERCLA, Consent Decree, Contamination, Contribution, Ninth Circuit, Remediation, Removal, Statute of Limitations, Superfund, Water

The Ninth Circuit recently reversed a grant of summary judgment by the United States District Court for the Central District of California in California Department of Toxic Substances Control v. Westside Delivery, LLC, No. 16-56558, 2018 WL 1973715 (9th Cir. Apr. 27, 2018), holding that a defendant who purchased real property at a tax sale had a “contractual relationship” with the previous owner “in connection with” the polluting activities, and therefore was not entitled to a third-party defense under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA). In this case, California’s environmental agency, the Department of Toxic Substances Control (DTSC), sought to recover clean up costs from a subsequent owner of the contaminated property and the owner asserted as a defense, recognized under CERCLA, that the contamination was caused by a third party prior to it taking title with whom it had no contractual relationship. The matter before the court was one of first impression in the Ninth Circuit: “Does a defendant who buys real property at a tax sale have a ‘contractual relationship’ with the previous owner of the property within the meaning of CERCLA?” Id. at *1. The court’s affirmative answer will give pause to prospective tax-defaulted property purchasers who may find themselves liable for cleanup costs under CERCLA. Read More »

Share | Email| Comments|  Topics: California, CERCLA, Cost Recovery, Innocent Party, Ninth Circuit, Real Estate, Superfund

Do indirect discharges of pollutants into navigable waters amount to a violation of the Clean Water Act? On February 1^st, the Court of Appeals for the Ninth Circuit held in Hawaii Wildlife Fund et al. v. County of Maui, No. 15-17447, that discharges of pollutants originating from a point source violate the Clean Water Act even if the pollutants first enter another means of conveyance—in this case groundwater—before entering into a navigable waterway. Despite recent EPA efforts to roll back certain environmental regulations, the court gave no deference to EPA’s amicus curiae proposed liability rule requiring a “direct hydrological connection” between the point source and the navigable water. Read More »

Share | Email| Comments|  Topics: Clean Water Act, Drilling, Effluents, EPA, Ninth Circuit, NPDES, Oil and Gas, Permits, Rapanos, Water

A bit over two years ago, we reported here on the district court decision in TDY Holdings v. United States, 122 F. Supp. 3d 998  (S.D. Cal. 2015), in which the court allocated 0% liability to the United States, despite the fact that it was an undisputed PRP at the site.  The decision was surprising at the time and, as with many surprising decisions, it did not survive on appeal as earlier this month the Ninth Circuit held in TDY Holdings v. United States, No. 15-56483, 2017 U.S. App. Lexis 19371 (9th Cir. Oct. 4, 2017), that TDY, a military contractor, was not solely responsible for remediation costs incurred at a former aeronautical manufacturing plant and thus remanded the matter back to the lower court to take another pass at allocating liability among the two parties.  The Ninth Circuit’s opinion thus allows military contractors seeking contribution from the government for remediation costs incurred at former defense sites under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) to breathe a long sigh of relief. Read More »

Share | Email| Comments|  Topics: California, Case Update, CERCLA, Contribution, Cost Recovery, Ninth Circuit, Remediation, Superfund

The federal Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), better known as Superfund, provides private parties with two types of claims to recover costs associated with investigating and remediating contaminated sites – a cost recovery claim under CERCLA Section 107(a), 42 U.S.C. § 9607(a), and a contribution claim under Section 113(f), 42 U.S.C. § 9613(f).  A party has a claim for contribution under CERCLA Section 113(f)(3)(B) if that party has “resolved its liability to the United States or a State for some or all of a response action or for some or all of the costs of such action in an administrative or judicially approved settlement.”  A party can therefore settle its liability for a contaminated site with the EPA or a state government, and then seek to recover a portion of the costs of that settlement from other potentially responsible parties who contributed to the contamination at the site.  But, CERCLA imposes a 3-year statute of limitations on Section 113 contribution actions, which begins to run from the date of entry of the administrative or judicially approved settlement.  While at first, this may appear to be a cut-and-dry statute of limitations, there is ample case law exploring the nuances of what it means for a party to have “resolved” its liability with the government such that the 3-year statute of limitations begins to run.  Last month, the United States Courts of Appeals for the Ninth Circuit added to that growing body of case law, in Asarco, LLC v. Atlantic Richfield Co., 866 F.3d 1108 (9th Cir. 2017). Read More »

Share | Email| Comments|  Topics: Case Update, Cases to Watch, CERCLA, Consent Decree, Contamination, Contribution, Decisions of Note, Ninth Circuit, Statute of Limitations, Superfund

Several years ago we reported on Community Action & Environmental Justice v. Union Pacific Corporation, in which a California District Court held the dispersion into the air of particulate matter that reaches the ground or water did not constitute a “disposal” subject to RCRA but, instead, was subject to regulation under the Clean Air Act.  That District Court opinion was affirmed in 2014, in Community Action & Environmental Justice v. Union Pacific Corporation, 764 F.3d 1019 (9^th Cir. 2014).  Yesterday, in the case of Pakootas v. Teck Cominco Metals, No. 15-35228 (9^th Cir. July 27, 2016), the Ninth Circuit expanded this analysis of the relative roles of our environmental laws by holding that a party who disperses air pollutants that eventually settle into the ground or water are not arrangers liable under CERCLA as they have not “disposed of” hazardous substances under the Act. Read More »

Share | Email| Comments|  Topics: Air, Arranger Liability, Bona Fide Prospective Purchaser, California, CERCLA, Clean Air Act, Contamination, Decisions of Note, Emissions, Hazardous Air Pollutants, Ninth Circuit, RCRA, Superfund

As part of EPA’s investigation of a Superfund site, EPA typically issues a 104(e) information request to any person or entity that EPA believes to have information regarding release of hazardous substances at the site, including those that may be considered to be PRPs charged with the ultimate cleanup of the site.  Responding to a 104(e) request often requires the recipient to provide detailed responses regarding historical and current industrial operations, and can often set the stage for settlement negotiations with EPA and other PRPs regarding funding the investigation and remediation of the Superfund site. In an unpublished non-precedential opinion filed yesterday, the United States Court of Appeals for the Ninth Circuit ruled that receipt of a 104(e) information request for a Superfund site triggers an insurer’s duty to defend a policyholder for attorneys’ fees and related costs associated with responding to the request.   Read More »

Share | Email| Comments|  Topics: CERCLA, Decisions of Note, Defense Costs, Duty to Defend, Insurance, Insurance Coverage, Ninth Circuit

On August 1, 2014, the Ninth Circuit Court of Appeals handed down a decision in Arizona v. Raytheon Co., No. 12-15691 (9^th Cir. Aug. 1, 2014), that may give trial courts some pause before approving future CERCLA settlements.  At issue was whether the trial court failed to adequately scrutinize consent decrees entered into between the Arizona Department of Environmental Quality (the “ADEQ”) and twenty-two Potentially Responsible Parties (“PRPs”) allegedly liable under CERCLA for contamination at the Broadway-Patano Landfill Site.  The majority opinion held that the trial court’s deference to the AQED’s judgment that the settlements were fair and reasonable was impermissible, and sent the case back down for a more thorough fairness hearing.   However, the more important aspect of the decision may be that, in dicta, the Court concluded that “[e]ven if EPA had been a party to the proposed consent decrees in this case, the district court would have failed to fulfill its duty to independently scrutinize the parties’ agreements.”  Id. at 21. Read More »

Share | Email| Comments|  Topics: Arizona, CERCLA, Cleanup, Consent Decree, Contamination, Contribution, EPA, Landfill, Ninth Circuit, Remediation, Removal, Superfund