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October 2011

Illinois Supreme Court Limits Environmental Groups’ Appeal Rights


By Gabrielle Sigel and Phoebe B. Scott

On October 27, 2011, the Illinois Supreme Court, in a 5-2 decision, held that the Sierra Club and Peoria Families Against Toxic Waste ("the opposition groups") did not have standing to seek review of an Illinois Pollution Control Board ("Board") decision granting a company's petition to be relieved of compliance with a hazardous waste regulation. Sierra Club v. The Illinois Pollution Control Board, No. 110882 (Ill. Oct. 27, 2011).

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States Seek Review By The U.S. Supreme Court In Asian Carp Case

Torrence_Allison_COLORBy Allison A. Torrence


As previously discussed in this blog, the states of Michigan, Minnesota, Ohio, Pennsylvania and Wisconsin have sued the U.S. Army Corps of Engineers and the Metropolitan Water Reclamation District of Greater Chicago, seeking a preliminary injunction aimed at stopping the spread of Asian carp from the Chicago Area Waterway System ("CAWS") into the Great Lakes. The United States Court of Appeals for the Seventh Circuit recently affirmed a lower court's denial of a preliminary injunction in the case of Michigan v. U.S. Army Corps of Engineers. On October 26, 2011, the states filed a Petition for a Writ of Certiorari, asking the U.S. Supreme Court to review and reverse the decision of the Seventh Circuit.

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EPA’s Malicious Prosecution Costs U.S. Government $1.7 Million

By Scott Ritter

Editor's Note: Mr. Ritter is a 1L law student at Indiana University Maurer School of Law and recently participated in a shadow day program with the Firm.

An ordeal that began in 1996 has culminated in a judgment of $1.7 million for former refinery manager, Hubert Vidrine. The U.S. District Court for the Western District of Louisiana awarded Vidrine that sum based on the EPA's malicious prosecution for violations of the Resource Conservation and Recovery Act. The Court held that the EPA did not have probable cause that Vidrine was storing hazardous waste, and that the EPA's 1996 search of the Canal Refinery Company in Church Point, Louisiana did not yield evidence of RCRA violations.

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EPA Releases Memo Outlining Enforcement Discretion for CERCLA Liability Protection

By Phoebe B. Scott

On September 21, 2011, the Environmental Protection Agency’s (“EPA”)  Office of Site Remediation Enforcement released a memorandum titled “Enforcement Discretion Guidance Regarding the Affiliation Language of CERCLA’s Bona Fide Prospective Purchaser and Contiguous Property Owner Liability Protections.” The memorandum outlines how EPA intends to exercise its enforcement discretion for parties who would otherwise qualify for liability protection defenses under the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”). The memo was sent to the Regional Counsel and Superfund National Policy Managers for EPA regions I-X.

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Significant Penalty Imposed For Alleged RCRA Violations

Siros_Steven_COLORBy Steven M. Siros


According to U.S. EPA, Sherwin-Williams agreed to pay a $570,000 civil penalty to settle alleged RCRA violations at a paint manufacturing facility in Baltimore.  These alleged RCRA violations included the storage of hazardous waste in excess of 90 days, the failure to date and label hazardous waste containers, the failure to close hazardous waste containers, the failure to comply with inspection requirements for hazardous waste containers, and the failure to respond immediately to a release at the facility.  The magnitude of the penalty demonstrates how important it is for companies to ensure that their operations are in full compliance with all applicable RCRA rules and regulations.  Periodic internal reviews and audits are excellent ways to ensure continued RCRA compliance.

CERCLA Claims Against Environmental Contractor Allowed To Proceed

Siros_Steven_COLORBy Steven M. Siros


A federal district court refused to dismiss a lawsuit alleging CERCLA liability on the part of several environmental contractors that performed an environmental assessment and cleanup of a contaminated property.  In Bancorpsouth Bank v. Environmental Operations, Inc., et al., Bancorpsouth filed a CERCLA cost recovery lawsuit against several environmental contractors that were involved in the remediation of a contaminated site.  Bancorpsouth alleged that the contractors had known since at least 2001 that there were hazardous materials on the property and that the contractors "engaged in the deliberate disturbance, unearthing, spilling, moving and re-releasing" of these hazardous materials on the site.  Furthermore, Bancorpsouth alleged that the contractors failed to properly design and carry out the construction of an engineered cell on the site and to adequately screen materials from the dirt on the site prior to the dirt being spread around the site as fill.  The contractors moved to dismiss the complaint, arguing that Bancorpsouth had failed to allege that they fell within any of the categories of CERCLA responsible parties or that they had actual control or the authority to control any of the environmental operations on the site.

In refusing to grant the contractors' motion to dismiss, the court found that Bancorpsouth's failure to identify a specific category of CERCLA responsible party was not fatal to its CERCLA claims.  Instead, the court it sufficient that the complaint alleged that the contractors knew that the site was contaminated and that they deliberately disturbed those contaminated materials.  With respect to Bancorpsouth's failure to allege that the contractors had actual control or the authority to control, the court noted that "while discovery may reveal that the [contractors] had no authority to control the handling of the hazardous materials on the property", the allegations in the complaint were sufficient to place the contractors on notice of the CERCLA claims against them.

CERCLA's "Federally Required Commencement Date" Preempts State Statute Of Repose

Siros_Steven_COLORBy Steven M. Siros


A Georgia federal district court recently found that CERCLA's "federally required commencement date" preempted a state statute of repose.  In In re Camp Lejeune, N.C. Water Contamination Litigation, the plaintiffs, who allege that they were injured as a result of exposure to contaminated drinking water at Camp Lejeune, argued that CERCLA Section 9658(a) preempted a state statute of repose that would have barred plaintiffs' claims. 

CERCLA Section 9658 provides that:

In the case of any action brought under State law for personal injury, or property damages, which are caused or contributed to by exposure to any hazardous substance, or pollutant or contaminant, released into the environment from a facility, if the applicable limitations period for such action (as specified in the State statute of limitations or under common law) provides a commencement date which is earlier than the federally required commencement date, such period shall commence at the federally required commencement date in lieu of the date specified in such State statute.

CERCLA goes on to define the "federally required commencement date" with reference to when a plaintiff knew or should have known that his/her injuries were caused by the hazardous substance, pollutant or contaminant. 

The court expressed concern that if it were to accept plaintiffs' argument, it would in effect be allowing CERCLA to resurrect a cause of action that did not exist at the time the case was brought.   The court specifically noted that "although under the Commerce Clause, Congress can supply a cause of action, it is not clear that Congress can breathe new life into an expired cause of action."  That being said, however, the court acknowledged that CERCLA was a remedial statute whose terms should be construed liberally.  As such, the court concluded that notwithstanding its misgivings, Congress had made a policy decision that in situations covered by CERCLA, plaintiffs should have an opportunity to know they have a case before any state limitations period precludes their claims.  Such a limitations period includes a state statute of repose according to the court.

NWF Says Ecosystem Breakdowns in Great Lakes Caused by Excessive Nutrients and Invasive Mussels

By Phoebe B. Scott

On October 4, 2011, the National Wildlife Federation ("NWF")released a report titled Feast and Famine in the Great Lakes: How Nutrients and Invasive Species Interact to Overwhelm the Coasts and Starve Offshore Waters, claiming that a combination of excessive nutrients and invasive zebra and quagga mussels are causing ecosystem breakdowns in the Great Lakes. According to NWF, excessive nutrients are threatening local species by causing large-scale algal blooms in near-shore waters and invasive mussels are reducing fish populations by depleating nutrients, including plankton, that would support shrimp-like crustaceans, a critical link in the food chain.

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EPA Issues Final Health Assessment for TCE

By Katherine M. Rahill

On September 28, 2011, EPA issued a final health assessment for trichloroethylene ("TCE") to its Integrated Risk Information System ("IRIS") database.  IRIS is EPA's program through which it evaluates scientific information to determine risks of adverse human health effects as a result of exposure to environmental contaminants.  The risk information developed through the IRIS program is used by EPA to support its regulatory determinations.  The health assessments developed by EPA through this program identify both carcinogenic and non-cancer health effects associated with chemicals.

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Supreme Court Rejects Petition in Morrison Enterprises: High Court Will Not Address Key Superfund Cost Recovery Provisions

By Keri L. Holleb Hotaling

On October 3, the Supreme Court rejected the petition for certiorari in Morrison Enterprises, LLC v. Dravo Corp., which sought to clarify key Superfund cost recovery provisions. Specifically, the question was whether a party who has incurred response costs either pursuant to an administrative order, or to a consent decree following suit under § 106 or § 107 of the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), may ever seek to recover those "compelled" costs under §107(a), or whether the exclusive remedy for cost recovery is contribution under CERCLA § 113(f). For additional information, please see "Cases to Watch: Supreme Court Could Address Key Cost Recovery Issue In Morrison."

In 2008, Morrison Enterprises, LLC and the City of Hastings, Nebraska sued under CERCLA § 107 seeking to recover a portion of groundwater cleanup costs form Dravo Corp. Morrison, with the City's support, argued that Dravo was responsible for the TCE contamination and that Dravo should therefore pay for clean-up costs related to the operation of the well to extract the TCE contamination. Morrison did not bring a contribution claim under CERCLA § 113(f). The district court dismissed the claim, holding that because the parties had previously entered into administrative consent agreements relating to groundwater remediation, CERCLA § 113(f) provided the exclusive remedy. The Eighth Circuit affirmed. Morrison filed a petition for a writ of certiorari at the Supreme Court July 1.

Update: Great Lakes Week — October 11-14, 2011

Grayson_Lynn_COLORBy E. Lynn Grayson


EPA has announced a final schedule of meetings and programs for Great Lakes Week headquartered in the Metro Detroit Area. According to EPA, this gathering of annual meetings and conferences of various organizations in one place makes this one of the most wide-ranging Great Lakes summits in history.

For more on the Great Lakes Restoration Initiative visit

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