Supreme Court Sends Strong Signal that Lower Courts Should Stop Interpreting CERCLA “in a Liberal Manner” and Focus on the Statute’s “Text and Structure”

Baker & Hostetler LLP
Thomas E. Hogan

 June 11, 2014

The Supreme Court’s decision in CTS Corp. v. Waldburger, No. 13-339, 573 U.S. __ (June 9, 2014), sends a strong message to lower courts that the oft-repeated refrain that CERCLA is a “remedial statute” that must be “interpreted in a liberal manner” to effectuate its purpose cannot “substitute for a conclusion grounded in the statute’s text and structure.”  The refrain that CERCLA must be “interpreted in a liberal manner” has been used time and again by CERCLA plaintiffs – including the federal government – to encourage courts to make an already severe statute all the more so.  This is exactly what the Fourth Circuit did in this case, resulting in a 7-2 reversal by the Supreme Court.  This decision will make it more difficult for future CERCLA plaintiffs to persuade courts to interpret CERCLA’s provision “in a liberal manner” to suit their claims.

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EPA Issues Proposed Rule to Remove Reference to ASTM E1527-05 in All Appropriate Inquiries Rule

Perkins Coie LLP
Joanna M. Thies, Sloane A. Wildman and Aubri N. Margason

June 17, 2014

On June 17, 2014, the U.S. Environmental Protection Agency published a proposed rule to amend the standards and practices for complying with the “All Appropriate Inquiries” rule under the Comprehensive Environmental Response, Compensation, and Liability Act and its implementing regulations, 40 C.F.R. part 312. Amendments to CERCLA adopted in 2002 required EPA to publish regulations establishing standards and practices for conducting “All Appropriate Inquiries,” which is the process by which a party acquiring real property evaluates the site’s environmental conditions and potential for contamination. The party must follow these standards and practices to qualify for certain defenses from liability under CERCLA if a subsequent dispute arises concerning historical contamination at the site.  Under the existing regulations, the All Appropriate Inquiries investigation may be based on either the prior 2005 site assessment standard published by ASTM International or on the newer standard published by ASTM International in 2013. The proposed rule published today would eliminate the use of the prior 2005 standard.

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The Big Chill

Gordon & Rees LLP
Todd Nelson

June 5, 2014

Last month, the Environmental Protection Agency (EPA) issued final rules under the Clean Water Act Section 316(b). The new rules impact existing[1] facilities that: (1) use cooling water intake structures designed to withdraw at least two million gallons of water per day from U.S. waters; (2) have or are required to have a National Pollutant Discharge Elimination System (NPDES) permit; and (3) use at least 25 percent of the water they withdraw exclusively for cooling purposes. Additionally, they showcase the EPA’s efforts to prevent aquatic life from being drawn or trapped by plant and factory equipment. According to EPA, the rules will likely apply to more than 1,000 facilities in sectors including electric generation plants, pulp and paper mills, chemical manufacturing plants, iron and steel manufacturing facilities, petroleum refineries, food processing plants, and aluminum manufacturing facilities. According to Nancy Stoner, EPA’s acting assistance administrator for water, “EPA is making it clear that if you have cooling water intakes you have to look at the impact on aquatic life in local waterways and take steps to minimize that impact.”

The requirements offer facilities a choice of seven technologies to prevent both fish entrainment (aquatic organisms being drawn into the facility)

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EPA Directive Found to Violate its Own Regional Consistency Regulations

Holland & Knight LLP
Jessica L. Farmer

June 5, 2014

A panel of the D.C. Circuit vacated EPA’s Summit Directive–a directive which, in response to an unfavorable decision, imposed different regulatory requirements in one region of the country than those in force elsewhere.  The Court found that the directive violated EPA’s regional consistency regulations.

EPA’s regulations, in connection with the requirements of the Clean Air Act, state that multiple pollutant-emitting activities are considered to be a single stationary source if they are “adjacent.” In applying these regulations, EPA has stated that determinations as to whether two or more facilities are “adjacent” should be based on the functional interrelationships of the facilities, not just the physical distance.  This functional interrelationship theory was challenged, and in August of 2012, in Summit Petroleum Corp. v. EPA, the Sixth Circuit held that EPA’s broad definition of the term “adjacent” was arbitrary and capricious.  It therefore required that EPA limit its interpretation to review only the geographical proximity of separate facilities.   In response, EPA issued a directive to ordering all regional EPA offices outside of the Sixth Circuit to continue to use the functional interrelationship theory in determining whether facilities are a single source (the “Summit Directive”).

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