FOIA Information Reveals More Problems With Coal Ash Sites

Aug 31: According to a release from the nonprofit law firm Earthjustice, U.S. EPA has released information to environmental groups about America’s toxic coal ash dumps after months of data collection and inquiry. The groups, after a Freedom of Information Act (FOIA) request, discovered that there are 584 coal ash dump sites across the country -- almost twice as many as previously identified. These sites pose significant cancer and health risks that so far have gone unchecked. The groups said that because the EPA does not regulate the waste from coal-fired power plants, the agency had no information on the location and nature of the 584 wet ash dumps located throughout the EPA has acknowledged that wet disposal of coal ash presents a greater risk to human health and the environment than dry landfills because hazardous chemicals are more likely to migrate from such dumps and the large impoundments present a risk of catastrophic failure.

On June 30, 2009, following pressure from legislators and environmental organizations [See WIMS 6/22/09], EPA posted a list of 44 “high hazard potential” impoundments containing coal combustion residuals, commonly referred to as coal ash, at 26 different coal burning electric utility facilities [See WIMS 6/30/09]. The groups indicated that the FOIA data the obtained note ownership, location, hazard potential, year commissioned, type and quantity of coal combustion waste disposed, dates of the last regulatory or company assessment, and in some instances whether an unregulated discharge of coal ash had occurred. Some critical data were not included because companies claimed the data as "Confidential Business Information."

According to a release, states with coal ash sites included in the list are: Alabama, Arkansas, Arizona, Colorado, Delaware, Florida, Georgia, Iowa, Illinois, Indiana, Kansas, Kentucky, Louisiana, Massachusetts, Maryland, Michigan, Minnesota, Missouri, Mississippi, Montana, North Carolina, North Dakota, New Mexico, New York, Ohio, Oklahoma, Pennsylvania, South Carolina, Tennessee, Texas, Utah, Virginia, Wisconsin, West Virginia, and Wyoming. Lisa Evans, an attorney at Earthjustice said, "There is no lingering doubt, these coal ash dumps are dangerous and must be regulated immediately. The EPA list provides a clear view of the substantial extent of the threat. Now the agency needs to take the next step and ensure that communities are informed and protected against the possibility of another TVA-like tragedy."

On March 9, the EPA sent letters to hundreds of power generating facilities requesting information about coal ash surface impoundments [See WIMS 3/10/9]. The letters were in response to the disaster that occurred on December 22, 2008, at the Tennessee Valley Authority’s Kingston Fossil Plant in Harriman, TN [See WIMS 1/9/09]. Over 1 billion gallons of coal ash sludge flooded 300 acres in and near the Emory River when a dike at a coal ash pond collapsed, destroying homes and property and poisoning surrounding waters and wildlife.

The groups said the FOIA data just released reveal the problems are much more widespread than EPA previously thought. The wet disposal of coal ash and affect communities in 35 states, with concentrations of dangerous dumps in the Midwest, Appalachia, Intermountain West and Southeast. The data reveal that the majority of dump sites are over three decades old -- raising questions about the structural integrity of their dams and whether the waste ponds are adequately lined. Most older dump sites are not lined to prevent the migration of harmful chemicals to drinking water. The data reveal also that regulatory inspections of these dams by state and federal agencies are infrequent or non-existent.

EPA's data also indicate that many of the wet dumps are very large, with over a hundred exceeding 50 acres, including numerous sites comprising several hundred acres. Furthermore the largest dumps tend to be the older sites with the least amount of protection. The groups said, "The problems are likely underestimated by the present data set because companies like Duke Energy, Alabama Power, Georgia Power and Progress Energy have withheld information on 74 dump sites, including some of the largest dump sites in the U.S, claiming the information is 'confidential business information.'"

The groups said that despite the obvious threats posed by coal ash dumps, 25 senators (nine Democrats and 16 Republicans) signed a letter supporting Federal regulation that would let the utility companies off the hook. Mary Anne Hitt, Deputy Director of the Sierra Club’s Beyond Coal Campaign said, "Research has made it clear that coal ash is becoming increasingly toxic. In fact the cancer risk of people living near some coal ash sites is a staggering 1 in 50. Despite those chilling statistics, there are still no federal rules in place for safe disposal of coal ash. Coal ash should be treated like the hazardous substance it is, governed by strong rules to protect communities and hold the coal industry accountable for the risks posed by its toxic waste."

Access a lengthy release from Earthjustice with links to the FOIA data and related information (click here). Access information from EPA on the list of the units and other information related to coal ash (click here). Access EPA's Fossil Fuel Combustion Waste website for more information (click here). Access EPA's Coal Ash request website with links to the letter, facilities, corporations, Environmental Council of the States, and more (click here).

President Bush Discusses Conservation & Environment

Jan 6: President Bush delivered a speech on conservation and environmental issues at the Eisenhower Executive Office Building in Washington, DC. The President said that, "Since 2001, we have put common-sense policies in place, and I can say upon departure, our air is cleaner, our water is purer, and our lands are better protected."

He used the occasion to announce that under the Antiquities Act that Theodore Roosevelt signed in 1906, which allows the President to set aside places of historic or scientific significance to be protected as national monuments, he was issuing proclamations to designate what he called "three beautiful and biologically diverse areas of the Pacific Ocean as new marine national monuments."

The first is the Marianas Trench Marine National Monument that will protect much of the Marianas Trench -- the site of the deepest point on Earth -- and the surrounding arc of undersea volcanoes and thermal vents. The President said, "This unique geological region is more than five times longer than the Grand Canyon. It is deeper than Mount Everest is tall. It supports life in some of the harshest conditions imaginable. A fascinating array of species survive amid hydrogen-emitting volcanoes, hydrothermal vents that produce highly acidic and boiling water, and the only known location of liquid sulfur this side of Jupiter."

The second new monument announced will be the Pacific Remote Islands Marine National Monument. The monument will span seven areas to the far south and west of Hawaii. One is Wake Island -- the site of a pivotal battle in World War II, and a key habitat for nesting seabirds and migratory shorebirds. The third new monument will be the Rose Atoll Marine National Monument. Rose is a diamond-shaped island to the east of American Samoa -- the nation's southernmost territory. It includes rare species of nesting petrels, shearwaters, and terns -- which account for its native name, "Island of Seabirds."

The President said, "Taken together, these three new national monuments cover nearly 200,000 square miles, and they will now receive our nation's highest level of environmental recognition and conservation. This decision came after a lot of consultation -- consultation with local officials, consultation with prominent scientists, consultation with environmental advocates, consultation with the United States military and the fishing community. Based on these consultations, as well as sound resource management principles, the monuments will prohibit resource destruction or extraction, waste dumping, and commercial fishing. They will allow for research, free passage, and recreation -- including the possibility of recreational fishing one day. For seabirds and marine life, they will be sanctuaries to grow and thrive. For scientists, they will be places to extend the frontiers of discovery. And for the American people, they will be places that honor our duty to be good stewards of the Almighty's creation."

The President also discussed his Administration's actions on cleaning the air, water, establishing conservation areas and protecting wildlife. He noted that "more than 11,000 abandoned industrial brownfields are on their way back to productive use"; "aggressive steps to make America's energy supply cleaner and more secure"; and, "developing clean and efficient technologies like biofuels, advanced batteries and hydrogen fuel cells, solar and wind power, and clean, safe nuclear power." He said, "We built international consensus on an approach that will replace the Kyoto Protocol with a global climate agreement that calls for meaningful commitments to reduce greenhouse gases from all major economies, including India and China."

He concluded saying, "With all these steps, we have charted the way toward a more promising era in environmental stewardship. We have pioneered a new model of cooperative conservation in which government and private citizens and environmental advocates work together to achieve common goals. And while there's a lot more work to be done, we have done our part to leave behind a cleaner and healthier and better world for those who follow us on this Earth."

The designation of the three new protected areas -- Marianas Marine National Monument, Pacific Remote Island National Monument, and Rose Atoll National Monument -- was generally praised by environmental, marine and conservation groups. David Yarnold, executive director of Environmental Defense Fund (EDF) said, "Today's announcement marks an enormous step in conserving the biodiversity of our planet. These new marine monuments rank right up there with our nation’s greatest national parks. We are gratified that the president has given careful consideration to the scientific evidence and our recommendations to protect these areas." Elliott Norse, President of Marine Conservation Biology Institute said, "President Bush has now protected more ocean sites than anyone else in the history of the world. We greatly appreciate this bold, visionary action.”

While the Marine Monument designations drew praise, the Natural Resources Defense Council (NRDC) released its own rendition of the "The Bush Record." NRDC said it "culled through eight years of policies and actions under the Bush administration to create a dynamic, online timeline that highlights the government’s systematic undermining of environmental protections." Karen Wayland, legislative director for NRDC said, “Eight years of environmental abuse is finally coming to its bitter end, but its impact will take years to overcome. In November, Americans sent a clear message that they’re ready for a new direction. The Obama administration will have a lot of work ahead of it to restore environmental protections that ensure safety for people, endangered species and our national treasures.”

Access the speech and links to the Bush Record, and fact sheets on the National Monuments and the Environment (click here). Access the NOAA's National Marine Sanctuaries website for more information (click here). Access a release and links to the completed management plan and associated environmental assessments for Papahānaumokuākea Marine National Monument (click here). Access an interesting legal article on Marine Protected Areas including Marine National Monuments and National Marine Sanctuaries (click here). Access a release from EDF (click here). Access a release from NRDC and link to its timeline website and related information (click here). [*All]

Insurer Will Pay $42.5 Million To Cleanup MI, NJ & TN Sites

Jan 9: American International Specialty Lines Insurance Company Inc. (AISLIC) has agreed to pay $42.5 million to clean up contamination at four industrial facilities in a suit in which the Department of Justice intervened on behalf of the Environmental Protection Agency and other agencies. The four sites, formerly owned by Fruit of the Loom, are located in Michigan, New Jersey, and Tennessee. Granta Nakayama, assistant administrator for EPA's Office of Enforcement and Compliance Assurance said, "Insurers should take note that they may be liable for the cost of cleaning up their bankrupt clients' environmental messes.EPA will keep pursuing companies who pollute the environment."

Fruit of the Loom filed for bankruptcy in 1999 and the court set up two trusts to receive and distribute the company's remaining assets, including its environmental insurance policies. The trusts subsequently tried to collect environmental cleanup costs from AISLIC, a member company of AIG Insurance, under the insurance policy which covered response costs and natural resource damages under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). AISLIC denied coverage and then brought a suit seeking to confirm that it was not obligated to pay the trusts for these costs.

The settlement resolves a lawsuit that began in 2005 over environmental insurance coverage between AISLIC and the two bankruptcy trusts, and concludes litigation in which the Department of Justice intervened on behalf of EPA, the Department of Interior, the Nuclear Regulatory Commission (NRC), and the National Oceanic and Atmospheric Administration (NOAA). The states of New Jersey, Tennessee, Illinois and Michigan have also joined the settlement.

Under the settlement agreement, AISLIC will make an initial $30 million payment plus interest from May 15, 2007 and ten annual payments of $1.25 million to the Fruit of the Loom trusts. The three largest sites -- the St. Louis, MI, the Bergen County, NJ, and the Toone, TN, sites -- will each receive more than $12.5 million for environmental cleanup and restoration activities. The Breckenridge, MI, site will receive $2.1 million for cleanup. The proposed settlement agreement is subject to a 30-day public comment period. Following public comment, if appropriate, the United States would file a motion for entry with the court, seeking final court approval of the settlement agreement.

Access a release from EPA (click here). Access a fact sheet and link to the 139-page settlement agreement (click here). [*Remed]

Third Circuit Reverses DuPont Due To Atlantic Research Decision

WIMS will not be publishing Thursday and Friday,
November 22 and 23, 2007,

in observance of the Thanksgiving Day holiday.

We hope you have an enjoyable and safe Thanksgiving.

Nov 20: In the case of E.I. DuPont de Nemours & Co. v. U.S., the U.S. Court of Appeals, Third Circuit, Case No. 04-2096, has reversed its previous decision in the case in light of the U.S. Supreme Court decision in United States v. Atlantic Research Corp. [See WIMS 6/12/07]. In its opening discussion the Third Circuit indicates that the case is being reviewed on the order of the Supreme Court of the United States dated June 18, 2007, which granted the petition for a writ of certiorari filed by DuPont, vacated the previous judgment of Third Circuit and remanded the case for further consideration in light of its opinion in Atlantic Research Corp., 551 U.S. , 127 S. Ct. 2331 (2007). In their earlier opinion the Third Circuit majority held that DuPont could not pursue an action under CERCLA to recover from the United States a portion of its cleanup costs. The dissenting opinion would have held that DuPont could maintain an action for cost recovery under § 107 of CERCLA.

In its Atlantic Research Corp decision, the High Court succinctly summarizes its opinion saying, "Two provisions of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) -- §§107(a) and 113(f) -- allow private parties to recover expenses associated with cleaning up contaminated sites. 42 U. S. C. §§9607(a), 9613(f). In this case, we must decide a question left open in Cooper Industries, Inc. v. Aviall Services, Inc., 543 U. S. 157, 161 (2004): whether §107(a) provides so-called potentially responsible parties (PRPs), 42 U. S. C. §§9607(a)(1)–(4), with a cause of action to recover costs from other PRPs. We hold that it does." The Third Circuit Appeals Court said, "In light of the Supreme Court’s order, we return to the issue presented."

In the DuPont case before the Third Circuit, DuPont admits that its industrial facilities throughout the U.S. are contaminated with hazardous waste and it contaminated those sites, but alleges that the United States also contaminated parts of the sites. After DuPont voluntarily cleaned up a site jointly polluted by both DuPont and the government, DuPont filed this suit under CERCLA seeking an order requiring the government to reimburse it for a share of the cleanup costs.

On its review, the Third Circuit says, "The Supreme Court decision thereafter in Atlantic Research Corp... is dispositive of the issue before us. Atlantic Research, a PRP, had contaminated the soil and groundwater at an ammunition facility with burned fuel, but the United States had also polluted the site... Atlantic Research voluntarily cleaned up the site, even though it had not been the subject of a suit under §106 or § 107... It then sued the United States under both §§ 107(a) and 113(f) to recover a share of its voluntary cleanup expenses... The Court, in a unanimous opinion authored by Justice Thomas, held that, although Atlantic Research could not sue the United States under § 113(f) in that case because no §106 or § 107 action was pending or had been brought against Atlantic Research, it could bring a cost recovery claim under §107(a)..."

The Appeals Court states further that, "Voluntary cleanups are vital to fulfilling CERCLA’s purpose. During deliberations on the SARA Amendments, Congress emphasized the importance of voluntary action... Although supervised cleanups are to be encouraged wherever possible, they need not be encouraged at the expense of unsupervised cleanups. Under § 107(a)(4)(B), a party is liable for costs incurred in a cleanup (voluntary or otherwise) only insofar as those costs are 'costs of response incurred by any other person consistent with the national contingency plan...' By the plain text of the statute, a party that seeks recovery for costs incurred in a cleanup that does not comport with the national contingency plan is without recourse. Because there has been no suggestion that DuPont’s cleanup is in that position, it has stated a viable cause of action for cost recovery under § 107(a).

"For the reasons set forth, we will reverse the decision of the District Court with respect to any claim made by DuPont for costs incurred while undertaking voluntary cleanup efforts and remand for further proceedings in accordance with this opinion."

Access the complete 17-page opinion (click here). [*Remed]

Comments Wanted On Superfund Alternative Approach Report

Oct 3: The U.S. EPA announced the release of a report entitled, Results of the Superfund Alternative Approach Evaluation, for public review [72 FR 56346-56347]. The Superfund Alternative Approach is an alternative to listing a contaminated site on the Superfund National Priorities List (NPL) before starting cleanup. Comments on the report and SA approach must be received by December 3, 2007.

In June 2002, EPA issued a guidance document titled, "Response Selection and Enforcement Approach for Superfund Alternative Sites" (the "SAS Guidance"). The guidance addressed technical and enforcement issues for sites using the Superfund Alternative (SA) approach -- sites that require long-term response (i.e., remedial action) and are eligible for, but are not listed on, the National Priorities List (NPL). Because Superfund monies cannot be used to fund remedial actions at sites not listed on the NPL, a viable potentially responsible party (PRP) must be willing to perform the remedial action.

When the SAS Guidance was revised and reissued in June 2004 (the "Revised SAS Guidance"), EPA announced it would pilot the SA approach for 18 months. The Office of Site Remediation Enforcement (OSRE) and the Office of Superfund Remediation and Technology Innovation (OSRTI) were tasked with conducting an evaluation of this pilot to better understand how EPA Regions are implementing the SA approach, whether it leads to successful site cleanups, and the concerns expressed by stakeholders.

The evaluation focused on sites identified in CERCLIS as SA sites as of February 2005, and on SA agreements signed between June 2002 and December 2005. The evaluation involved several rounds of data gathering and analysis, discussions with stakeholders, and document review. The SA Evaluation Team found that the SA approach yielded 19 agreements with SA provisions during the pilot period. Most of the SA activity took place in Region 4 (Southeast states) and Region 5 (Great Lake states). Generally, the SA agreements use language consistent with the SAS Guidance.

The Team recommends retaining the SA approach as an available option in appropriate circumstances and recommends several specific next steps. The report concludes, "While EPA uses the SA approach in only limited situations, it should be retained as a viable option for consideration in appropriate circumstances. The SA approach is one more tool for cleaning up seriously contaminated sites through agreements with PRPs. However, the Agency can do more to improve consistency in implementing the approach and helping stakeholders understand the process and benefits of the SA approach."

On June 6, 2007, U.S. EPA's Office of Inspector General (OIG) issued a new report entitled, EPA Needs to Take More Action in Implementing Alternative Approaches to Superfund Cleanups (Report No. 2007-P-00026, June 6, 2007) [See WIMS 6/7/07]. The report evaluated the Superfund Alternative sites approach. Among other items, OIG found that EPA had not implemented effective management tools or controls for the SA approach. OIG recommended that EPA track and report cleanup progress at SA sites, and improve its communications, information, and transparency about the SA approach.

Access the complete 7-page report (click here). Access the EPA docket, EPA-HQ-OECA-2007-0635, for links to the FR announcement and to comment (click here). Access the complete 45-page OIG report (click here). [*Remed]

Unanimous Supreme Ct Settles CERCLA Liability Issues

Jun 11: In a relatively brief, 11-page unanimous opinion, the U.S. Supreme Court has decisively settled an important liability issue left open in a previous decision and which has been dealt with by three separate circuits. The case, U.S. v. Atlantic Research Corp. (Docket: 06-0562), appealed by the U.S. from the Eighth Circuit Court of Appeals decision of August 11, 2006 [See WIMS 8/14/06]. Oral arguments were held on April 23, 2007 [See WIMS 4/23/07].

The High Court succinctly summarizes its opinion saying, "Two provisions of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) -- §§107(a) and 113(f) -- allow private parties to recover expenses associated with cleaning up contaminated sites. 42 U. S. C. §§9607(a), 9613(f). In this case, we must decide a question left open in Cooper Industries, Inc. v. Aviall Services, Inc., 543 U. S. 157, 161 (2004): whether §107(a) provides so-called potentially responsible parties (PRPs), 42 U. S. C. §§9607(a)(1)–(4), with a cause of action to recover costs from other PRPs. We hold that it does."

The High Court explains that after SARA’s [Superfund Amendments and Reauthorization Act of 1986] enactment, some Courts of Appeals believed it necessary to “direc[t]traffic between” §107(a) and §113(f). As a result, many Courts of Appeals held that §113(f) was the exclusive remedy for PRPs. But as courts prevented PRPs from suing under§107(a), they expanded §113(f) to allow PRPs to seek “contribution” even in the absence of a suit under §106 or §107(a). Aviall Servs., Inc. v. Cooper Industries, Inc., 312 F. 3d 677, 681 (CA5 2002) (en banc). In Cooper Industries, we held that a private party could seek contribution from other liable parties only after having been sued under §106 or §107(a). 543 U. S., at 161. The High Court said, "This narrower interpretation of §113(f) caused several Courts of Appeals to reconsider whether PRPs have rights under §107(a)(4)(B), an issue we declined to address in Cooper Industries. Id., at 168."

The Eighth Circuit opinion in Atlantic Research Corp agreed with a similar ruling in the Second Circuit decision in Consolidated Edison Co. v. UGI Utilities, Inc., 423 F.3d 90, 100 (2d Cir. 2005]; however, those decisions were in conflict with a decision of the Third Circuit in E. I. Dupont de Nemours & Co. v. United States, 460 F. 3d 515 (CA3 2006).

In brief review of the instant case, the High Court summarizes that Atlantic Research cleaned the site at its own expense and then sought to recover some of its costs by suing the United States under both §107(a) and §113(f). After our decision in Cooper Industries foreclosed relief under §113(f), Atlantic Research amended its complaint to seek relief under §107(a) and federal common law. The United States moved to dismiss, arguing that §107(a) does not allow PRPs (such as Atlantic Research) to recover costs.The District Court granted the motion to dismiss, relying on a case decided prior to our decision in Cooper Industries, Dico, Inc. v. Amoco Oil Co., 340 F. 3d 525 (CA8 2003). The Court of Appeals for the Eighth Circuit reversed.

The Supreme Court says, "The parties’ dispute centers on what 'other person[s]' may sue under §107(a)(4)(B). The Government argues that 'any other person' refers to any person not identified as a PRP in §§107(a)(1)–(4).2 In other words, subparagraph (B) permits suit only by non-PRPs and thus bars Atlantic Research’s claim. Atlantic Research counters that subparagraph (B) takes its cue from subparagraph (A), not the earlier paragraph (1)–(4). In accord with the Court of Appeals, Atlantic Research believes that subparagraph (B) provides a cause of action to anyone except the United States, a State, or an Indian tribe -- the persons listed in subparagraph (A). We agree with Atlantic Research... The Government’s interpretation makes little textual sense."

The Supreme Court summarizes the Government's arguments as follows: the Government maintains that our interpretation, by offering PRPs a choice between §107(a) and §113(f), effectively allows PRPs to circumvent §113(f)’s shorter statute of limitations. Furthermore, the Government argues, PRPs will eschew equitable apportionment under §113(f) in favor of joint and several liability under §107(a). Finally, the Government contends that our interpretation eviscerates the settlement bar set forth in §113(f)(2).

The High Court counters the three Government arguments and explains in some detail why "in the case of reimbursement, the PRP cannot choose the 6-year statute of limitations for cost-recovery actions over the shorter limitations period for §113(f) contribution claims." Likewise, the High Court says, "a PRP could not avoid §113(f)’s equitable distribution of reimbursement costs among PRPs by instead choosing to impose joint and several liability on another PRP in an action under §107(a). The choice of remedies simply does not exist. In any event, a defendant PRP in such a §107(a) suit could blunt any inequitable distribution of costs by filing a §113(f) counter-claim." And, finally the High Court says, "...permitting PRPs to seek recovery under §107(a) will not eviscerate the settlement bar set forth in §113(f)(2). That provision prohibits §113(f) contribution claims against '[a] person who has resolved its liability to the United States or a State in an administrative or judicially approved settlement . ..'”

Washington State Attorney General Rob McKenna hailed the decision as a victory for his State and explained why the decision is important to other states as well. McKenna said, "The Court’s decision ensures that many contaminated sites which might have been unaddressed for a significant time will be cleaned up. In Washington, more than 1,200 sites are listed on the state’s contaminated sites list. Of these, approximately 250 are in the process of being cleaned up by liable parties under the state’s formal oversight. Because the state does not have resources to address every known site in the state, the remaining sites will likely be addressed as voluntary cleanups. This means that a party who has liability for cleaning up the property will undertake the cleanup without any action by the federal or state government. The ability to obtain contribution to the costs of cleanup from other parties who have liability for a contaminated site is one of the key incentives for parties to perform these voluntary cleanups.”

Access the complete opinion (click here). Access the U.S. Supreme Court Docket listing all amici curiae parties for the case (click here). Access a release from the Washington State AG (click here). Access a discussion of the opinion on the SCOTUS Blog (click here). [*Remed]

Sediment Dredging Has Fallen Short of Achieving Cleanup Goals

Jun 5: A new report from the National Academy of Sciences' (NAS) National Research Council (NRC) indicates that at many projects to dredge contaminated sediments from U.S. rivers and other bodies of water, it has not been demonstrated that dredging has reduced the long-term risks the sediments pose to people and wildlife. Many dredging projects have had difficulty meeting short-term goals for reducing pollution levels. Whether dredging alone can reduce long-term risks was difficult to determine at many sites because of inadequate monitoring data and other limitations. The report, Sediment Dredging at Superfund Megasites: Assessing the Effectiveness, calls on the U.S. EPA to improve and intensify its monitoring at dredging and other projects intended to remediate contaminated sediments at the nation's Superfund sites.

The report concludes that dredging's ability to achieve cleanup goals depends on a site's characteristics. If a particular site has one or more unfavorable conditions -- the presence of debris such as boulders or cables, for example, or bedrock lying beneath the contaminated sediment -- then dredging alone is unlikely to be sufficient. The presence or absence of such conditions should be a major consideration in deciding whether to dredge at a site.

Contaminated sediments can be found at the bottoms of many U.S. rivers and other water bodies near former mining, agricultural, or industrial sites. Tainted with polychlorinated biphenyls (PCBs), heavy metals, or other toxic substances, the sediments can pose risks to people, fish, and aquatic animals. Many of these sites are slated for cleanup by EPA under Federal Superfund legislation, and a minimum of 14 of them are sediment "megasites" -- sites where the cost of remediating sediments is expected to reach at least $50 million, or has already done so. Decisions about whether to dredge at these sites have proved controversial, so Congress asked the Research Council to evaluate the method's effectiveness. To inform its conclusions, the committee examined 26 dredging projects, five of them at megasites, and evaluated whether they had attained their cleanup and risk-reduction goals.

The report indicates that dredging is effective at removing contaminated sediment mass permanently from the environment. But removing mass may not be enough to achieve desired cleanup levels or long-term goals for reducing risks, because dredging inevitably leaves residual contamination behind. Dredging alone achieved expected cleanup results at only a few of the sites the committee analyzed. At many others, capping -- placing a layer of uncontaminated material over the tainted sediments -- was also necessary to contain the remaining contamination at acceptable levels. Assessments of the sites also revealed that the dredging process releases contaminants into the water, which in the short term can have adverse effects on fish and other aquatic animals and could potentially raise health risks in people who consume them.

Dredging remains one of the few approaches available for cleaning up contaminated sediments, and EPA should continue to consider its use among other methods. In locations where buried contaminated sediments could be dislodged by storms, for example, dredging the sediments to prevent them from being transported may reduce risks. If dredging is used, planners need to recognize that residual contamination and releases of chemicals into the water will invariably occur; they should estimate the effects of these processes in advance, and employ best practices to minimize them. Using a combination of methods should also be considered, particularly if a site has any characteristics unfavorable to dredging.

The report also says that the typical Superfund approach, in which EPA conducts an investigation and a feasibility study that establishes a single path to remediation, is not the best way to choose remedies for these sites. Given the long time frames and many unknowns involved in cleaning up megasites, adaptive management -- which uses monitoring data to review progress and adjust plans when needed -- should be used to select and implement cleanup methods. In addition, dredging and other remediation projects should be designed to meet long-term goals for reducing risks to people and wildlife, instead of objectives not directly related to risk, such as removing a specified amount of sediment. The report emphasizes that without adequate monitoring before and after dredging, it is impossible to evaluate the degree to which cleanup objectives have been reached. EPA should invest in better and more consistent measurement tools to monitor conditions in the field reliably and efficiently.

Access a release from NAS (click here). Access links to the complete report, a 27-page summary and a 4-page report in brief (click here). [*Remed, *Water]

Appeals Court Deals Blow To Industry MTBE Litigation Strategy

May 24: In the case of consolidated cases, In Re: Methyl Tertiary Butyl Ether (MTBE) Products Liability Litigation, U.S. Court of Appeals, Second Circuit, Case Nos. 04-5974 & 04-6056. The case includes the consolidated cases of: State of California v. Atlantic Richfield Company, et al. and State of New Hampshire v. Amerada Hess Corporation, et al. The two cases are among scores of related actions removed from state court and transferred to the Southern District of New York by the Judicial Panel on Multidistrict Litigation pursuant to MDL No. 1358, In re Methyl Tertiary Butyl Ether (MTBE) Products Liability Litigation.

The case involves an appeal from an order of the United States District Court for the Southern District of New York denying Plaintiffs-Appellants’ motions to remand. The Appeals Court ruled that, "Because the district court erroneously held that it had removal jurisdiction over these actions under the federal officer removal statute, 28 U.S.C. § 1442, and/or the bankruptcy removal statute, 28 U.S.C. § 1452, and no alternative ground for jurisdiction is satisfied, we vacate the order of the district court and remand with directions to return these cases to the forums from which they were removed." While the various states have been arguing that the cases should be tried in state courts; oil companies and refineries have argued that they were operating as "federal officers" in carrying out a mandate to add MTBE to their reformulated gasoline, and therefore, the cases should be heard in Federal courts.

According to the Appeals Court, two issues are presented: "(1) whether principles of sovereign immunity are violated when a state plaintiff voluntarily prosecutes a claim in state court and the action is removed from state to federal court pursuant to a statute that expressly authorizes removal; and (2) if not, whether the district court had subject matter jurisdiction over this matter under the federal officer removal statute, 28 U.S.C. § 1442, the bankruptcy removal statute, 28 U.S.C. § 1452, or some other ground."

On the issue of "sovereign immunity," the Appeals Court ruled, "...California and New Hampshire have each made and acted upon the decision to commence a lawsuit. This voluntary act subjects them to the consequences that Congress may legitimately attach to such an action. Thus, we conclude that sovereign immunity does not bar the removal of these state-commenced actions to federal court."

On the second issue, the Appeals Court said in part, "The California and New Hampshire actions relate primarily to matters of public health and welfare, and the money damages sought will not inure, strictly speaking, to the economic benefit of the states. Instead, the clear goal of these proceedings is to remedy and prevent environmental damage with potentially serious consequences for public health, a significant area of state policy. Thus, even under the tests advocated by the defendant companies, these proceedings represent efforts by California and New Hampshire to enforce their 'police or regulatory power' and are not subject to removal..."

The Appeals Court also indicates that the district judge concluded, “defendants have sufficiently alleged that they added MTBE to gasoline at the direction of the EPA, a federal agency.” The Appeals Court said, "We cannot agree. The conclusion of the district judge is not based on an explicit directive in either the Clean Air Act or its implementing regulations. Significantly, after oral argument in this appeal, the district judge held that 'federal law did not require the use of MTBE...' the district judge and the defendants acknowledged that the EPA identified six other additives, besides MTBE, that could be blended into reformulated gasoline to meet the requirements imposed by the CAA and the regulations... That it may have been more convenient or less expensive for the defendants to use MTBE does not mean it would have been impossible for them to use other, less polluting additives..."

New Hampshire Attorney General Kelly Ayotte issued a release saying that New Hampshire’s lawsuit against oil companies for MTBE contamination of state waters will be returned to state court, as a result the decision by the unanimous decision of the Second Circuit appeals court. She said the Appeals Court ruled that there was no Federal jurisdiction to hear New Hampshire’s state case and that it must be returned to state court, where it was originally filed.

In 2003, the State had sued oil companies that added the chemical methyl tertiary butyl ether (MTBE) to gasoline sold in New Hampshire. The State sought full recovery for Statewide contamination of drinking water supplies. The oil companies immediately removed the case to Federal district court, which denied the State’s request to return to State court. The State appealed on grounds that there was no Federal jurisdiction over the State’s case. The appeals court agreed and remanded the state’s case to the Merrimack County Superior Court.

Ayotte said, “We are very pleased that the Federal appeals court agreed with us that the proper place to hear this important case about New Hampshire’s drinking water is in our State’s courts. We look forward to trying the case as soon as possible before a jury of New Hampshire citizens.”

Access the complete opinion (click here). Access a release from the New Hampshire AG (click here). [*Remed, *Water, *Drink]

U.S. v. Atlantic Research Corp. Oral Arguments

Apr 23: The U.S. Supreme Court heard oral arguments in the case of U.S. v. Atlantic Research Corp. (Docket: 06-0562). The case is being appealed from the Eighth Circuit Court of Appeals decision of August 11, 2006 [See WIMS 8/14/06]. The primary questions presented in the case is: "Whether a party that is potentially responsible for the cost of cleaning up property contaminated by hazardous substances under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), but that does not satisfy the requirements for bringing an action for contribution under Section 113(f) of CERCLA, 42 U.S.C. 9613(f), may bring an action against another potentially responsible party under Section 107(a), 42 U.S.C. 9607(a)?"

The arguments included appearances from Thomas Hungar, Deputy Solicitor General for petitioner United States; Thomas Armstrong of Von Briesen & Roper for respondent Atlantic Research; and Jay Geck, the Deputy Solicitor General of Washington State, an amicus party supporting respondent Atlantic Research. An extensive list of amicus parties are referenced in the contacts below. A group of 40 states, Ford Motor Company, General Motors, Natural Resources Defense Council, former EPA officials and others are supporting respondent Atlantic Research. (See link to the complete transcript below).

In the Eighth Circuit opinion, which the Solicitor General says is incorrect, the Appeals Court said, "We agree with our sister Circuit [referring to the Second Circuit decision in Consolidated Edison Co. v. UGI Utilities, Inc., 423 F.3d 90, 100 (2d Cir. 2005], and hold that it no longer makes sense to view § 113 as a liable party’s exclusive remedy. This distinction may have made sense for parties such as Dico, which was allowed to seek contribution under § 113. But here, Atlantic is foreclosed from using § 113. This path is barred because Atlantic – like Aviall – commenced suit before, rather than 'during or following,' a CERCLA enforcement action. Atlantic has opted to rely upon § 107 to try to recover its cleanup costs exceeding its own equitable share. We conclude it may do so."

In its brief, the U.S. Solicitor General indicated, "This case presents the principal question left open by this Court two Terms ago in Cooper Industries, Inc. v. Aviall Services, Inc., 543 U.S. 157 (2004): Whether a party that is potentially responsible for the cleanup of property contaminated by hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. 9601 et seq., but is not eligible to bring an action for contribution under Section 113(f) of CERCLA, 42 U.S.C. 9613(f), may nevertheless bring an action against another potentially responsible party under Section 107(a), 42 U.S.C. 9607(a). In this case, the Eighth Circuit, consistent with an earlier decision of the Second Circuit but in conflict with a later decision of the Third Circuit, held that a potentially responsible party could pursue such an action under Section 107(a).

Access the complete transcript of the oral arguments (click here). Access a Medill News Service summary of the action (click here). Access the U.S. Supreme Court Docket listing all amici curiae parties for the case (click here). Access the Eight Circuit opinion (click here). Access the SCOTUS Blog preview of the argument (click here). Access links to various media coverage of the argument (click here). [*Remed]

Dingell Requests Clarification On CERCLA Liability Issues

Oct 23: U.S. Representative John Dingell (D-MI), Ranking Member of the House Energy and Commerce Committee, in a letter to U.S. EPA Administrator Stephen Johnson, has requested clarification of the case law and EPA's position relating to CERCLA responsible party liability issues since the U.S. Supreme Court decided in Cooper Industries, Inc. v. Aviall Services, Inc. 125 S. Ct, 577 (2004) [See WIMS 12/14/04]. In addition to the letter, Representative Dingell includes a list of 14 questions for Administrator Johnson and requests a response by November 9, 2006. In his letter, Dingell writes:

"On December 13, 2004, the Supreme Court decided in Cooper Industries, Inc. v. Aviall Services, Inc. 125 S. Ct, 577 (2004) that a private party may not obtain contribution from other liable parties under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) (Section 113 (f)(1)) unless the private party has been sued under Section 106 or Section 107(a) of CERCLA. The ruling reversed a decision by the U.S. Court of Appeals for the Fifth Circuit that held parties who initiate private cleanups may bring contribution suits irrespective of prior enforcement action. The Supreme Court reserved judgment on the question whether liable parties who are not subject to an action under Section 107 may instead seek relief under Section 107(a)(4)(B).

"Since the Supreme Court decision in Cooper Industries v. Aviall there have been several United States Circuit Court of Appeals decisions and numerous district courts that have directly addressed the availability of a CERCLA subsection 107(a) contribution claim to potentially responsible parties who have voluntarily incurred cleanup costs. I am aware of two Circuit Court of Appeals decisions, Consolidated Edison Company of New York, Inc. v. UGI Utilities, Inc., 423 F.3d 90 (2nd Cir., 2005) and Atlantic Research Corp. v. United States of America (8th Cir., August 11, 2006) [See WIMS 8/14/06], that held a liable party may, under appropriate procedural circumstances, bring a cost recovery action under Section 107. These two Circuit Courts concluded that it no longer made sense to view Section 113 as a liable party's exclusive remedy. Several weeks after the Eighth Circuit's decision in Atlantic Research Corp., the United States Court of Appeals for the Third Circuit in El Dupont DeNemours and Company and Conoco, Inc., et al, v. United States of America (August 29, 2006) [See WIMS 9/12/06] refused to imply a cause of action for contribution under Section 107 or the common law available to potentially responsible parties engaged in sua sponte voluntary cleanups.

"I would like to obtain additional information relating to the case law in the other circuits with respect to the availability of Section 107 for contribution as well as the Environmental Protection Agency's (EPA) view on the impact of the decision in Cooper Industries v. Aviall on the overall cleanup program and the EPA's reaction to proposed legislative language to overturn the Supreme Court Decision in Cooper Industries v. Aviall."

Access the letter and questions to Administrator Johnson (click here). Access the complete Cooper Industries v. Aviall S.Ct. opinion (click here). [*Remed]

8th Circuit Joins 2nd Circuit On CERCLA Suits

Aug 11: In the U.S. Court of Appeals, Eighth Circuit, Atlantic Research v. United States, Case No. 05-3152. Atlantic Research Corporation of Camden, Arkansas, sought partial reimbursement from the United States for costs incurred in an environmental cleanup. Atlantic’s claim is based on the Comprehensive Environmental Response, Compensation, and Liability Act, amended by the Superfund Amendments and Reauthorization Act of 1986. The issue for consideration is whether CERCLA forbids a party such as Atlantic, which has voluntarily cleaned up a site for which it was only partly responsible, to recover part of its cleanup costs from another liable party. The Appeals Court held that CERCLA § 107 permits such a cause of action.

Atlantic sought to recover a portion of these costs from the United States by invoking CERCLA §§ 107(a) and 113(f).3 Atlantic and the government began to negotiate in an effort to resolve these financial matters. The negotiations ended with the United States Supreme Court decision in Cooper Industries, Inc. v. Aviall Services, Inc., 543 U.S. 157, 125 S. Ct. 577, 160 L.
Ed. 2d 548 (2004) (Aviall). In Aviall, the court found a party could only attempt to obtain § 113(f) contribution 'during or following' a §§ 106 or 107(a) CERCLA civil action. Id. at 161, 125 S. Ct. at 580. As no action had been commenced against Atlantic under either §§ 106 or 107(a), the Aviall decision barred its § 113(f) contribution claim. With its § 113(f) claim Aviall-foreclosed, Atlantic amended its complaint. The amended complaint relied solely on § 107(a) and federal common law. In lieu of answer, the government moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), arguing this Court’s pre-Aviall decision in Dico, Inc. v. Amoco Oil Co., 340 F.3d 525 (8th Cir. 2003) (Dico) foreclosed Atlantic’s § 107 claim. The district court agreed and Atlantic appealed the decision.

The Appeals Court provides considerable discussion of pre-Aviall claims and the effect of the Aviall Supreme Court decision. The Second Circuit is the only Court which has considered this question since the Aviall decision. That Court also revisited its pre-Aviall precedent and concluded that § 107 allowed one liable party to recover voluntarily incurred response costs from another. Consolidated Edison Co. v. UGI Utilities, Inc., 423 F.3d 90, 100 (2d Cir. 2005).

The Eighth Circuit said, "We agree with our sister Circuit, and hold that it no longer makes sense to view § 113 as a liable party’s exclusive remedy. This distinction may have made sense for parties such as Dico, which was allowed to seek contribution under § 113. But here, Atlantic is foreclosed from using § 113. This path is barred because Atlantic – like Aviall – commenced suit before, rather than 'during or following,' a CERCLA enforcement action. Atlantic has opted to rely upon § 107 to try to recover its cleanup costs exceeding its own equitable share. We conclude it may do so."

Editor's Update Note: On January 19, 2007, the U.S. Supreme Court agreed to hear the case of U.S. v. Atlantic Research Corp. (Docket: 06-0562). The case was appealed from the Eighth Circuit Court of Appeals decision of August 11, 2006 [See WIMS 8/14/06]. The primary questions presented in the case is: "Whether a party that is potentially responsible for the cost of cleaning up property contaminated by hazardous substances under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), but that does not satisfy the requirements for bringing an action for contribution under Section 113(f) of CERCLA, 42 U.S.C. 9613(f), may bring an action against another potentially responsible party under Section 107(a), 42 U.S.C. 9607(a)?"

Access the complete Eighth Circuit opinion (click here). Access a Medill News Service summary of the action (click here). Access the U.S. Supreme Court Docket for the case (click here). [*Remed]