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July 2010

Owner During Cleanup is the "Current Owner" for Purposes of CERCLA, 9th Circuit Says

By Rachel Loftspring

On July 22, 2010, the U.S. Court of Appeals for the 9th Circuit, on a question of first impression, considered which of two potentially responsible parties--one that owned a property when a recovery claim accrued and the other that owned that same property when a suit was filed--constitutes the “current owner” for the purposes of determining liability under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).  See 42 U.S.C. § 9607(a)(1).  The Court held that the owner of a property when cleanup costs are incurred is the “current owner,” affirming the lower court’s ruling.  See California v. Hearthside Residential Corp.9th Cir., No. 09-55389, 7/22/10.

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Fourth Circuit Says No to Interstate Nuisance Claim

Siros_Steven_COLORBy Steven M. Siros


On July 26, 2010, the Fourth Circuit overturned a January 2009 district court decision that had found that emissions from 11 coal-fired power plants located in Alabama, Kentucky and Tennessee that were allegedly impacting North Carolina constituted a public nuisance. North Carolina v. Tennessee Valley Authority, No. 06-2131 (4th Cir., July 26, 2010). In January 2009, the U.S. District Court for the Western District of North Carolina agreed that emissions from these plants constituted a public nuisance and ordered the Tennessee Valley Authority ("TVA"), which owned and operated these plants, to install pollution control technology that was estimated to cost in excess of $1 billion. (Click here to view the district court decision.)  The district court's ruling was somewhat surprising in that these plants were all properly permitted facilities and there were no allegations that these plants were operating in contravention of any applicable permit, rule or regulation.

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Limits to CERCLA'S Owner/Operator Liability

By James A. Vroman

The United States District Court for the Western District of Washington has ruled that a party cannot be liable under CERCLA as an "owner/operator" for the remediation of impacted soil and water if the impacted soil and water is not located within the party's facility, and is entirely outside of the property limits of the party's facility, even though the contaminants that impacted the soil and groundwater may have originated at the party's facility and migrated off-site to impact down gradient locations. See, United States v. Washington State Dept. of Transportation, Case NO. 08-5722RJB.

The United States brought a CERCLA action against the Washington State Department of Transportation (the "DOT") contending that coal tar from the DOT's Tacoma Spur Property had migrated and contaminated the Thea Foss and Wheeler Osgood Waterways (the "Waterways").  The United States sought to impose CERCLA liability on the DOT as an owner/operator and compel the DOT to remediate the Waterways.  Although the DOT did not own or operate the Waterways, the Tacoma Spur Property and the Waterways were both located within the large Commencement Bay/Nearshore Tidelands Superfund Site.  The United States contended that the entire Superfund Site was one "facility" and, therefore, the DOT was an "owner" of the "facility," as that term is defined in CERCLA.

The Court disagreed with this contention.  It found that the Superfund Site was comprised of a number of different properties each with a different owner.  The different owners had no common purpose and did not conduct common activities on their properties.  Therefore, the Court could not accept the United States' argument that the entire Site was one facility.  Moreover, the Court concluded that the Waterways and the Tacoma Spur Property "are reasonably divided into multiple parts or functional units."  Accordingly, the Court found that they were separate "facilities" under CERCLA and the DOT was not the owner/operator of the Waterways facility and could not be liable under CERCLA for the remediation of the Waterways as an "owner/operator" Potentially Responsible Party ("PRP"), even if the coal tar impacting the Waterways had migrated from the Tacoma Spur Property.   

Mine Safety & OSHA Reform Bill Approved by House Committee


By Gabrielle Sigel


On July 21, 2010, the Education and Labor Committee for the House of Representatives voted 30-17 to send to the full House the Robert C. Byrd Miner Safety and Health Act of 2010 (H.R. 5663). The bill incorporates portions of the previously introduced Protecting America's Workers Act (H.R. 2067, S. 1580) and addresses safety in both mines and other workplaces. With respect to revisions to the Occupational Safety and Health Act, the Byrd bill increases civil and criminal penalties, expands family members' rights in settlement of violations, requires abatement during the period that citations are contested, and enhances protection for whistleblowers. The Committee also passed amendments to H.R. 5663 which affects the employer's burden of proof and the statutory standard for criminal liability. In addition, the Committee approved providing OSHA enhanced mechanisms for requiring state plan programs to conform to federal requirements. The authority of the Mine Safety and Health Administration ("MSHA") would be expanded to allow for increased penalties and enhanced enforcement, including with respect to the right to close down an unsafe mine, subpoena documents and testimony, and require additional training for miners. Republican efforts to modify these expansions of OSHA's and MSHA's authority were largely rejected, and the bill was voted out of Committee along party lines.

Trafigura Fined $1.3M Over International Toxic Waste Dumping

Grayson_Lynn_COLORBy E. Lynn Grayson


The Dutch Supreme Court fined Trafigura Beheer, one of the world's largest companies trading commodities, $1.3M for delivering hazardous waste to Amsterdam while concealing the true nature of the wastes and exporting the wastes to Cote D'Ivoire for disposal. The high court described Trafigura's actions as the most serious offense possible under the European Union's waste shipment regulation prohibiting such exports to third-world countries. According to Amnesty International, the court's guilty verdict is the first time the company has been held criminally accountable for its involvement in the export of hazardous wastes to Cote D'Ivoire.

The case arises from the 2006 incident wherein Trafigura off-loaded waste from a ship in Amsterdam for disposal but for alleged cost considerations, reloaded and transported the waste to Cote D'Ivoire. In August, 2006, 408 tons of highly toxic petrochemical waste and caustic soda were dumped in various locations around the City of Abidjan. As a result, over 100,000 local residents sought medical attention for a range of health problems. Trafigura already has paid other settlements resulting from this 2006 incident including $197M to the Ivory Coast government and $47.8M to affected residents.

The Dutch case focused on events in the Netherlands highlighting to many observers the challenges of prosecuting companies for actions that cross borders. Amnesty International has met and worked with those impacted by the dumping and noted "there is an urgent need for the international community to learn the lessons from this incident. States must do more to ensure that multinationals respect human rights both at home and abroad." More information about this incident and the recent verdict can be obtained through Amnesty International at

NRDC Report Says Climate Change Will Cause U.S. Water Shortages

Grayson_Lynn_COLORBy E. Lynn Grayson


The National Resources Defense Council (NRDC) has joined other environmental organizations, government authorities and industry groups in confirming that climate change factors will result in serious water shortages in the United States. In a report released July 20, 2010 titled Evaluating Sustainability of Projected Water Demands Under Future Climate Change Scenarios, the NRDC concludes that "impacts of climate change will greatly increase the number of areas where renewable water supply will be lower than withdrawal, therefore increasing the number of areas vulnerable to future water shortages." Click here for report.

According to the report, performed by the environmental consulting firm, Tetra Tech, for the NRDC, over 1,100 U.S. counties will see greater risks of water shortages due to the effects of climate change and 400 of these counties will face extremely high risks of water shortages. Fourteen states are highlighted as being the most at risk: Arizona; Arkansas; California; Colorado; Florida; Idaho; Kansas; Mississippi; Montana; Nebraska; Nevada; New Mexico; Alabama; and, Texas.

According to the NRDC, the only way to truly manage the risks exposed by this report is for Congress to pass meaningful legislation that cuts global warming pollution and allows the U.S. to exercise global leadership on this issue.

U.S. Issues New Deepwater Drilling Suspension

By Rachel Loftspring

On July 12, Secretary of the Department of the Interior, Ken Salazar, issued a decision memorandum directing a new suspension of certain offshore drilling and permitting activity in the Gulf of Mexico and Pacific regions.  This order was made pursuant to 30 C.F.R. § 250.172(b)-(c), which, in pertinent part, provides that suspensions may be ordered when activities “pose a threat of serious, irreparable, or immediate harm or damage” to human or animal “life . . ., property, any mineral deposit or the marine, coastal, or human environment” or “[w]hen necessary for the installation of safety or environmental protection equipment.”

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U.S. Chemical Safety Board Investigating Deepwater Horizon Oil Rig Blowout

Sigel_Gabrielle_COLORBy Gabrielle Sigel


On June 25, 2010, Congress confirmed the appointments to the two last vacant positions on the U.S. Chemical Safety Board ("CSB"): Dr. Rafael Moure-Eraso, as CSB Chairman; and Mark Griffon, as CSB Member. On June 18, 2010, the CSB also informed Congressmen Waxman and Stupak, of the House Committee on Energy and Commerce, that the CSB intends to investigate the April 20, 2010 Deepwater Horizon oil rig explosion. This investigation is occurring in response to a request made by the Congressmen earlier in June. The CSB, in operation since 1998, is an independent agency charged with investigating industrial chemical incidents. It has no authority to issue fines or citations, but its recommendations are often relied on by other government agencies, industry organizations, and unions.

In its June 18, 2010 letter confirming that the CSB intends to proceed with its investigation of the "root causes" of the Deepwater Horizon incident, then Chairman John Bresland stated that the CSB was uniquely able to assess the incident due to its "past work on BP's culture and corporate safety oversight." In particular, it noted that CSB's investigators of the Deepwater Horizon incident will include those who investigated the March 23, 2005 explosion at BP's Texas City refinery. However, the CSB emphasized that it did not intend to investigate the response to, or the impact of, the Gulf oil spill.

Finally, the CSB informed Congress that to conduct the Deepwater Horizon explosion investigation it would need to rapidly wind down or terminate other investigations, and that it would be requesting additional funding, as needed, from Congress. The CSB noted that the investigation of the Texas City refinery incident alone cost the agency approximately $2.5 million. In its letter, the CSB did not inform Congress of any target date for the conclusion of its Deepwater Horizon investigation.

Additional Greenhouse Gas Reporting Requirements Imposed

Sigel_Gabrielle_COLORBy Gabrielle Sigel


Supplementing the greenhouse gas ("GHG") reporting regulations issued in October 2009, on June 28, 2010, U.S. EPA imposed annual reporting requirements on four additional GHG sources: underground coal mines; industrial water treatment systems; industrial waste landfills; and magnesium production facilities. The magnesium facilities' principal GHG emission of concern is sulfur hexafluoride, which has been reported as having a global warming potential of 22,800 times that of carbon dioxide ("CO2"). The other three new reporting sources have methane as their principal GHG emission. Methane has 20 times the global warming potential of CO2. These four new source categories must begin collecting emissions data on January 1, 2011, and submit their first annual reports to the EPA on March 31, 2012. EPA's final rule on the new source categories for GHG reporting can be found here. EPA's October 2009 rule requiring GHG reporting can be found here.