Environmental Law Insight - Updates and Analysis from Taft's Environmental Trial Lawyers

Taft environmental attorneys and Environmental Law Insight contributors, Frank Deveau and David Guevara, Ph.D., designed and edited a new book titled Environmental Liability and Insurance Recovery. The book was published in May 2012 by ABA Book Publishing and was sponsored by the ABA’s Tort Trial and Insurance Practice Section.

Environmental law and insurance law demand the mastery of an intricately involved set of concepts, definitions, rules, and regulations – all of which are continuously developing. Environmental Liability and Insurance Recovery addresses the legal issues at the crossroads of environmental law and insurance law.  Specifically, Environmental Liability and Insurance Recovery addresses the diverse ways in which a party may be exposed to environmental liability and how insurance coverage may provide financial support for such liability.

To learn more and purchase a copy of the book, please click here.

On May 1, 2012, US EPA announced that it had finalized its third list of 'unregulated contaminants' for future monitoring by drinking water providers.  We reported on release of the draft list of 30 substances, and included a listing of the originally-proposed 28 chemicals and 2 viruses, on January 12, 2011.  The final rule identifies mostly the same subtances for monitoring, such as previously-unregulated perfluorochemicals, PFOA and PFOS, except that EPA has deleted n-Propylbenzene and sec-Butylbenzene from the list and has added the controversial listing of hexavalent chromium and total chromium.  EPA also has decided to revise the requirement to monitor 7 listed hormones from Assessment Monitoring to the Screening Survey.  Under the final rule, EPA estimates that approximately 6000 public water systems will now be required to monitor and report inormation on these substances that, generally speaking, lack "health-based standards set under the Safe Drinking Water At."   Upon release of this final rule, EPA also pledged to spend more than $20 million to support the new monitoring, "the majority of which will be devoted to assist small drinking water systems with conducting the monitoring."  EPA has posted additional information and background materials on the new rule on its website.

On January 4, 2012, we reported to you my view that the United States District Court for the Eastern District of Wisconsin “could not have been more wrong” in finding that an Asset Purchase Agreement (APA) imposed direct CERCLA liability on the purchaser.  The purchaser filed a motion for reconsideration of this summary judgment, and on April 10, 2012, the district court reversed itself, and dismissed all claims against the purchaser.  In so holding, the court held that the APA was not drafted “broadly enough to encompass [defendant’s] direct liability for the CERCLA liability at issue in this case.”  Slip Op. at p.2.  The court found that the present liability did not arise from any “violation” of law or any “compliance” issue.  The court rejected the argument of the Justice Department that the filing of a CERCLA lawsuit triggered the “violation” thereby causing defendant’s CERCLA liability under the APA.  The court was kind to the Justice Department in describing this position as “a wholly circular argument.”  United States of America v. NCR Corp. et al., Case No. 1:10-cv-00910-WCG (April 10, 2012)(doc. 349).

The United States Supreme Court recently held that an enforcement order issued by the United States Environmental Protection Agency (“EPA”) under the Clean Water Act (the “Act”) constituted “final agency action” and that the Act did not preclude judicial review of the order. (Sackett v. EPA, No. 10-1062 (U.S. March 21, 2012).

The dispute arose after landowners, the Sacketts, placed fill material on their property in the beginning stages of building their house. The Sacketts then received an order from the EPA, which stated that their residential lot qualified as a wetland and that their construction project violated the Act. Specifically, the order stated that by placing the fill material on the property, the Sacketts unlawfully discharged a pollutant as prohibited by the Act. The order directed the Sacketts to take various actions, including restoring the “wetland” on their property pursuant to an EPA-created plan and providing EPA access to their property and any related documentation. According to the order, the Sacketts faced fines of up to $75,000 for each day of non-compliance.

To learn more about this ruling, please click here to read an article I recently published.

On February 16, 2012, US EPA reissued and renewed the expiring 2008 Stormwater Construction General Permit (CGP) for a five-year term.  The new permit covers stormwater discharges from disturbances of one or more acres of land.  EPA states that the CGP is issued to “improve its readability, clarity, and enforceability.”  EPA’s Fact Sheet summarizing the 2012 “clarified” CGP is 135 pages long. 

New requirements to implement technology-based Effluent Limitation Guidelines and New Source Performance Standards for the construction and development industry were issued on December 1, 2009 (the “C&D Rule”), but the numeric turbidity discharge limits are currently stayed indefinitely. Therefore, new non-numeric performance standards apply under the 2012 CGP for C&D sites.

To learn more, click here to read a recent article I published.

Author's note: Taft partner, Earl K. Messer, also contributed to this article. He can be reached at messer@taftlaw.com.