ENVIRONMENTAL LEGAL BLOGS

MAJOR BATTLE OVER WHETHER MANURE IS POTENTIALLY "HAZARDOUS MATERIAL" UNDER CERCLA

      The website Politico reports:

Oklahoma Attorney General Drew Edmondson is raising a stink over manure.

Fed up with manure runoff from farms polluting his state’s waterways, Edmondson is suing a batch of upstream poultry farms, including several owned by Tyson Foods, which he says have been irresponsible with their waste management and should be prosecuted under the Superfund law.

The suit, which has been ongoing since 2005, has set off a panic in the agriculture community and a lobbying frenzy on Capitol Hill, where many fear the case will open the door for other large-scale or factory farms to be penalized with hefty pollution taxes.
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Nearly identical pieces of the legislation have been introduced by agriculture committee members Sen. Blanche Lincoln (D-Ark.) and Rep. Collin Peterson (D-Minn.), who both have the same mission: protecting industrial farms from being named as environmental hazards or Superfund sites.

The bill, which would keep large manure producers from being prosecuted under Superfund, has already won bipartisan support and has more than 150 co-sponsors in the House and about 25 sponsors in the Senate — many, like Rep. Ralph Hall (R-Texas), from farming-intensive states.

     This has not been covered much in the news but obviously is a major environmental battle brewing in Congress--and one that crosses party lines.  In reality, of course, if anyone in Washington still believed in federalism (most don't), they would conclude that exempting industrial-farm manure from CERCLA ("Superfund") does not mean that such manure would necessarily go unregulated.

     After all, affected States could still prosecute polluters under States' own environmental laws.  Then again, that would mean recognizing that the federal government does not necessarily need to control everything.  What a novel concept.

   

LANDMARK SUPREME COURT DECISION ON CERCLA-US V ATLANTIC RESEARCH

     The United States Supreme Court today handed down a landmark decision on the federal Superfund law (United States v. Atlantic Research Corp.).  Writing for a unanimous Court, Justice Thomas found that Section 113(f) of the Superfund law (technically, the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. Section 9601 et seq.), known as the "contribution" provision of the law, is not the only vehicle by which a private party can seek compensation from another party alleged to be a polluter.

     The Court held that another Section of the law (Section 107(a)(4)(b)) allows for such suit even if the party suing has not itself been sued by anyone or has not settled its liability with the Government (which is a restriction imposed by 113(f)).  Thus, a private party that voluntarily is cleaning up a site has a right of action despite the fact that no one is pursuing that party to force the clean up.

     Prior to Atlantic Richfield, it was uncertain whether or not such a volunteer had such a right.  The Supreme Court's decision thus clears the way for clean-up volunteers to press litigation in the federal courts.

     The text of the Atlantic Research decision can be found here.

THE PIOUS AMONG US

     From yesterday's Los Angeles Times:

Environmental activists won a major victory Wednesday when a judge declared that the U.S. Department of Energy continues to violate federal law in its cleanup of nuclear and chemical contamination at Boeing's Rocketdyne field laboratory near Simi Valley.

U.S. District Judge Samuel Conti also barred the DOE from transferring ownership of its Santa Susana property until it conducts a more thorough environmental review of its cleanup operations at the former nuclear and rocket engine testing facility.

     The most interesting part of the article is not the ruling, which may or may not be wise/prudent/an overreaction, etc.; the most interesting portion is the quotes from the usual suspects who use every opportunity to claim that the "powers that be" intentionally want to pollute the groundwater, poison the air and otherwise ensure we all die because, apparently, somehow the "powers that be" don't drink water or breathe air:

"The Bush administration was trying to cut corners at the expense of public health, and the judge wasn't having any of it," said James Birkelund, a Los Angeles-based attorney for the lead plaintiff, the Natural Resources Defense Council.

     I.e., it's all Bush's fault (isn't everything?).

***

... Daniel Hirsch, president of the anti-nuclear group Committee to Bridge the Gap, a co-plaintiff in the lawsuit, said that nowhere in the 47-page ruling did the judge side with the DOE, and by extension the property owner, Boeing, which purchased the field lab 11 years ago.

"What the judge is essentially saying to the DOE is: 'You guys have really fouled up this cleanup; you've broken the law repeatedly. And I'm going to retain jurisdiction until I'm satisfied that you've met your obligations to clean up the mess you've made.' "

     Thanks, Dan; but, really, we can read the opinion for ourselves.

      Again, the Judge's opinion and ruling may or may not be justified under the law.  However, anyone who works in the environmental area knows that the laws and regulations governing site cleanups are complex, unwieldy and subject to differing interpretation.  Yet it never occurs to the self-proclaimed guardians of the environment that there can be a reasonable difference of opinion on legal/regulatory requirements-- it's always a morality play, with good vs. evil.

     For certain environmentalists, going green is as much a religion as it is a science, with saints (Al Gore) and sinners (Bush; Cheney; Boeing). 

     Another interesting point is the way media bias covers the judiciary.  The Los Angeles Times' article refers simply to U.S. District Judge Samuel Conti in a tone of reverence and respect-- the Judge has spoken and thus it must be so.  However, when the same Judge made a ruling on pornography regulation that the press regarded as anti-First Amendment, coverage made sure to insinuate that the Judge was probably biased or at least suffering from advanced age:

The CPPA [Child Pornography Prevention Act of 1996] was originally intended to address child pornography created through the technique of computer "morphing"--using a computer to put a child's face on the body of a nude adult, for example.

But lawyers who have tried to get the law overturned say it is unconstitutionally vague and bans expression protected by the First Amendment. Mr. Sirkin, representing the Los Angeles-based Free Speech Coalition, filed a challenge to the CPPA in San Francisco, in hoping to draw a sympathetic judge, he says. Instead, he got Judge Samuel Conti, a 76-year-old Nixon appointee on senior status. [emphasis added]

"He was the worst draw you could possibly get," says Mr. Sirkin.

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Companies that distribute films and other images nationwide also have to take into account the possibility that prosecutors in conservative areas of the country may enforce the CPPA more strictly than in liberal areas.

Says [film screenwriter] Mr. Schiff, "You can never anticipate the amount of nuttiness in the legal or the law enforcement community."

     Apparently, the Judge has become a saint now that he has found religion.

US HOUSE CONSIDERING BILL TO EXEMPT MANURE FROM CERCLA

    Last November, Rep. Ralph M. Hall (R-Tex.) introduced HR 4341 (go to the House home page and click on "Find a Bill or Law" on the right-hand side of the page) which provides

`(a) In General- Upon the date of enactment of this section, manure shall not be included in the meaning of `hazardous substance' under section 101(14) of this Act or `pollutant or contaminant' under section 101(33) of this Act.

    The Legislation has 157 co-sponsors in the House and is presently in the House Subcommittee on Environment and Hazardous Materials.  The bill appears designed to help the agricultural industry, in which obviously releases/disposals of manure are an everyday occurrence.

     The "environmentalist" lobby is not pleased. The Union of Concerned Scientists this month commented:

...Congress may exempt factory farms from pollution laws
Large agribusiness companies are pushing their friends in Congress to exempt factory farms from the pollution reporting and cleanup provisions in key pollution laws. The Comprehensive Environmental Response, Compensation and Liability Act (CERCLA, also known as Superfund) and the Emergency Planning and Community Right to Know Act (EPCRA) provide an essential safety net for protecting water supplies from livestock pollution and for providing warnings of toxic air emissions from factory farms. Over 140 representatives are supporting a bill, H.R. 4341, that would give this sweetheart deal to factory farms. The bill may soon be attached to a "must-pass" spending bill in an effort to speed this ill-conceived measure through Congress. Please call your representative and urge him or her to oppose this dangerous legislation.

     The text of the legislation (see link above), however, does not distinguish between "factory" farms (whatever that means) and, presumably, "non-factory" farms.  Also, while undoubtedly large agribusiness would benefit from (and is pushing) this legislation, as far as I can tell smaller farms would benefit, too.

     In any event, is there anything intrinsically wrong with larger farms benefiting?  Last time I checked, the Equal Protection Clause existed for their benefit, too. 

SUPREME COURT ASKED TO RESOLVE KEY CERCLA CONTRIBUTION ISSUE

     The April 21, 2006 edition of BNA's Environmental Reporter (subscription site) contains two important updates on the evolving law as to when a "Responsible Party" can bring a lawsuit for contribution under CERCLA:

Court Allows Use of CERCLA Section 107 As Vehicl to Sue Others for Contribution

The U.S. District Court for the District of Oregon joined the ranks of a growing number of federal courts March 14, holding that a potentially responsible party that voluntarily cleans up its property can sue under Section 107 of the superfund law (McDonald v. Sun Oil Co., D. Or., No. 03-1504, 3/14/06).

Over the last 16 months, more and more federal courts have read Section 107 of the Comprehensive Environmental Response, Compensation, and Liability Act broadly to mitigate the fallout of the U.S. Supreme Court's ruling in Cooper Industries v. Aviall, 543 U.S. 157, 59 ERC 1545 (2004).

In Cooper Industries, the Supreme Court ruled that a potentially responsible party (PRP) can file a contribution action against another PRP under Section 113 of CERCLA only if a "civil action" or a settlement has been filed previously (35 ER 2581, 12/17/04 ).

Supreme Court Asked to Review Ruling Allowing Section 107 Cost Recovery Lawsuit

UGI Utilities Inc. petitioned the U.S. Supreme Court April 17 to review an appeals court ruling that a private party may bring a superfund cost recovery action against other potentially liable parties after it has voluntarily cleaned up hazardous waste (UGI Utilities Inc. v. Consolidated Edison Co., U.S., docket number unavailable, 4/17/06). The high court was asked to review a U.S. Court of Appeals for the Second Circuit decision, which was the first federal appeals court decision to address cost recovery under Section 107(a) of the Comprehensive Environmental Response, Compensation, and Liability Act since the Supreme Court decided Cooper Industries v. Aviall, 543 U.S. 157, 59 ERC 1545 (2004) (35 ER 2581, 12/17/04 ).

In Cooper Industries, the Supreme Court held that only potentially responsible parties that have been sued or have otherwise resolved their superfund liability with the government may bring a Section 113 contribution claim for costs incurred. However, the decision left open the question of whether a PRP may pursue a 107(a) action against other PRPs, including as an alternative remedy to a barred Section 113 claim.

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The Second Circuit decision said that after Cooper Industries, it "no longer makes sense" to view Section 113 as the sole means by which PRPs can seek to recover from other PRPs (Consolidated Industries Co. v. UGI Utilities Inc., 423 F.3d 90, 61 ERC 1321 (2d Cir. 2005) (36 ER 1954, 9/23/05 ).

SUPERFUND SITE CLEANUP PROGRESS TOUTED BY FEDERAL EPA IN PRESS RELEASE

Yesterday, November 22, 2005, the federal EPA issued a press release stating the accomplishments of the Superfund cleanup program during Fiscal Year 2005.  To quote EPA:

... EPA completed work at 40 sites, for a cumulative total of 966 sites with work completed -- 62 percent of the top priority sites ranked on the National Priorities List. EPA conducted 665 ongoing cleanup projects at 422 sites (includes projects led by EPA, projects led by potentially responsible parties and federal facility sites). EPA funded new work at 17 projects across the country. Superfund also continued to prepare for future cleanup efforts by listing 18 new sites and proposing 12 sites to be added to the NPL.

     More interesting stats from the press release:

As the Superfund program matures, so does the size, complexity and cost of sites under or ready to begin construction. In FY 05, 50 percent of the budget for long-term, ongoing cleanup work was committed to 11 sites. Even so, EPA was also able to provide $70 million to start cleanup work at 17 projects across the country.

Underscoring EPA's commitment to the "polluter pays" principle, the agency secured private party commitments of more than $1.1 billion in FY 05. Of this amount, potentially responsible parties agreed to conduct more than $857 million in future response work, and to reimburse EPA for $248 million in past costs.

DTSC WORKSHOPS ON NEW SUPERFUND REGULATIONS

     DTSC has announced the following workshops regarding amendments to the State Superfund regulations:

1.  Extending the Post-closure Care Period

Date:     November 15, 2005
Time:     9:00 A.M. to 1:00 P.M.

Location:     Coastal Hearing Room
    Joe Serna Jr. Cal/EPA Headquarters Building
    1001 I Street, 2nd Floor
Sacramento, California 95812

2.  Financial Test and Corporate Guarantee/Captive Insurance
Date:         November 29, 2005 (rescheduled from 10/31/05)
Time:         9:00 A.M. to 1:00 P.M.-

Location:     Coastal Hearing Room
        Joe Serna Jr. Cal/EPA Headquarters Building
        1001 I Street, 2nd Floor
        Sacramento, California 95812

     Further FYI, for those who cannot attend in person, the DTSC has in its workshop announcements included the following standard notification:

If you are unable to attend, the workshop may be monitored live via audio webcast.  The broadcast link will be available on the Cal/EPA website at: http://www.calepa.ca.gov/broadcast/.  Questions and comments may be submitted in real time by sending an e-mail to:  coastalrm@calepa.ca.gov.  DTSC staff will monitor  e-mails and, as time allows, read them aloud.  All questions and comments submitted via e-mail will be considered in DTSC's future actions.

"EPA RELEASES ANNUAL SUPERFUND REPORT"

Here's the link.

EPA, LOUISIANA ISSUE REPORT ON NEW ORLEANS FLOOD CONTAMINATION

      Go here for a joint report on Friday, 9/16/05 by federal EPA and the Louisiana Department of Environmental Quality.

NEW ORLEANS: "Floods' Pollutants Within the Norm "

  On September 8, I Posted "Now, This is an Environmental Disaster", about the levels of hazardous wastes in the New Orleans flood waters.  I may have succumbed to the very environmentalist hyperbole against which I so often caution.  Today's Washington Post (free subscription required) headlines:

Floods' Pollutants Within the Norm 

     The article states:

Early tests on the floodwater that covered most of this city do not suggest it will leave a permanent toxic residue or render residential areas uninhabitable for more than a short time, officials of both state and federal environmental agencies said yesterday.

The pollution consists primarily of fecal matter and slightly elevated concentrations of metals such as lead and chromium that were in the city's soil before Hurricane Katrina. There are also trace amounts of many petroleum-based chemicals and some pesticides.

Despite descriptions of the floodwater as a "toxic soup" and a "witch's brew" of contaminants, the preliminary tests reveal it contains little that is different from what has been seen after past floods in other cities and here.

***

"The early results do not indicate specific toxic pollutants at any levels of concern," said Chris M. Piehler, a senior environmental scientist at the Louisiana Department of Environmental Quality. Asked if residue from floodwaters posed hazards that would keep residents from moving back, he answered: "No. The limiting factor is going to be what structures are going to be salvageable and which ones are not."

     These are still early results; and the same article also says that several specific areas will have greater problems because of oil spills.  Nonetheless, just as (thankfully) the order of magnitude of deaths caused by the hurricane now appears to have been dramataically overestimated, the order of magnitude of contamination caused by the hurricane is beginning to appear to have been overstated with equal drama.

     So, I hereby relearn my own basic truth:  we should know that there is a lot we don't know about the environment, how to keep it clean and how to repair it (or how it repairs itself) when it is dirty.  We should keep this basic truth in mind when making environmental laws and imposing new regulatory restrictions on the economy.