Recently, Solutia Inc. and Pharmacia Corporation filed a petition for writ of certiorari with the U.S. Supreme Court seeking to overturn the Eleventh Circuit’s ruling that a Potentially Responsible Party (“PRP”) conducting a cleanup pursuant to a consent decree is foreclosed from bringing a cost recovery action against other PRPs under CERCLA Section 107, and may only seek contribution from other parties under CERCLA section 113.  This ruling is significant because 1) unlike CERCLA section 107, section113 does not provide for joint and several liability against other PRPs, 2) under CERCLA section 113, PRPs that settle with the government are given contribution protection, and 3) the statute of limitations under section 107 and section 113 differs.

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On August 8th, the California Supreme Court granted review of the Second District Court of Appeal’s decision in Neighbors for Smart Rail v. Exposition Metro Line Construction Authority.  As previously blogged in April, the Second District found that a lead agency’s use of projected future conditions to measure the environmental impacts that a long-term infrastructure project would have on traffic and air quality did not violate the California Environmental Quality Act (CEQA).  The Second District’s decision put it at odds with holdings of the Fifth and Sixth District Court of Appeals, making the issue of whether CEQA prohibits the use of projected future baselines ripe for review.

Public agencies have long argued that using current-conditions to measure the impacts of major infrastructure projects that will not be completed for many years to come is not helpful in determining the true traffic and air quality impacts the project will have once operational.  The California Supreme Court will now decide whether CEQA allows public agencies to have the discretion to select a future baseline for long-term projects.  Our blog will keep you updated on the court’s decision.

In a settlement reached in mid-April, CVS Pharmacy Inc. (CVS) agreed to pay almost $14 million to settle claims that it improperly stored and disposed of hazardous waste at its drugstores in California. 

In a suit brought in Ventura County Superior Court, prosecutors representing 45 cities and counties across California, alleged that CVS violated California’s Hazardous Waste Control Law (HWCL) (commencing at Health and Safety Code sections 25100 et seq.) and other laws through its improper storage and disposal of various medical, pharmaceutical and photographic waste.  California’s HWCL is California’s state counterpart to the federal Resource Conservation and Recovery Act (RCRA).  HWCL has a broad impact and regulates hazardous waste from cradle (generation) to grave (disposal).  In addition to the monetary payment, the settlement agreement also requires CVS to properly store, dispose and record hazardous waste in the future and train its employees regarding these requirements.   

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Last week, in Salmon Protection and Watershed Network v. County of Marin, the California Court of Appeals found that a public agency and a party disputing the adequacy of an environmental impact report (EIR) under the California Environmental Quality Act (CEQA) can enter into a tolling agreement to toll or suspend the CEQA statute of limitations. 

Petitioner SPAWN sought to challenge under CEQA the County of Marin’s general plan update on the grounds that the EIR’s cumulative impacts analysis was inadequate.  Generally, there is a short statute of limitations for challenging a public agency’s actions under CEQA.  Under California Public Resources Code section 21167, a petitioner only has 30 days from the date of the public agency’s filing of a notice of determination to challenge an EIR on the grounds that it does not comply with CEQA.  In an attempt to negotiate a pre-filing settlement, SPAWN and the County entered into a series of tolling agreements extending this 30-day limitation period.  However, when a settlement could not be reached, SPAWN brought its CEQA petition.

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On Tuesday, the Second District Court of Appeal issued its decision in Neighbors for Smart Rail v. Exposition Metro Line Construction Authority, ruling that a lead agency’s use of projected future conditions to measure the environmental impacts that a long-term infrastructure project will have on traffic and air quality did not violate the California Environmental Quality Act  (CEQA).  The court’s decision places it in fundamental disagreement with the rulings of the Sixth District and Fifth District Court of Appeals, which have each held that lead agencies are required by CEQA to evaluate project impacts against actual existing environmental conditions, and that agencies do not have the discretion to solely assess project impacts against future conditions expected to exist at the time a project will come into operation.  Although the decision is positive news for the many public agencies that historically engaged in this type of impact analysis to assess traffic and air quality impacts for long-term projects, the defensibility of CEQA documents that solely rely on projected future baselines will remain uncertain until the California Supreme Court takes the issue up for review.

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On March 21st, the United States Supreme Court unanimously ruled that the Sackett family has a right to challenge a pre-enforcement compliance order from the Environmental Protection Agency (EPA)before EPA initiates a formal enforcement action in Sackett v. EPA.

The Sacketts own about a half-acre vacant parcel of land in Idaho.  In early 2007, they filled the parcel with dirt and rock in preparation for building a house.  Later that year, EPA issued an administrative compliance order against the Sacketts alleging that the parcel of land is a wetland subject to the Clean Water Act (CWA) and that the Sacketts violated the CWA by filling in the land without obtaining a permit.  EPA ordered the Sacketts to return the land to its former condition or face over $30,000 in penalties per day for failure to comply.

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The Supreme Court recently issued its opinion in the closely watched case of PPL Montana, LLC v. State of Montana, 565 U.S. __ (2012), unanimously reversing and remanding a controversial Montana State Supreme Court decision granting Montana ownership of riverbeds underlying ten hydroelectric facilities on three of the state’s rivers.  The Supreme Court’s ruling relieved PPL of its obligation to pay the state of Montana $41 million in back rent for use of the riverbeds, and likely quelled any fears in the hydropower industry that similar ownership theories would be advanced by other states seeking to fill empty coffers with millions of dollars in back rental payments.  The Supreme Court’s opinion, while providing clarity on the proper application of the federal navigability-for-title test, limits its reasoning on navigability to those instances in which property rights between the states and the federal government are in question, and is explicitly inapplicable to determinations of whether waters are “navigable” for purposes of federal regulatory programs.

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Recently, Honorable Judge Ronald M. Gould, writing for a panel of the Ninth Circuit Court of Appeals, found the Environmental Protection Agency’s (“EPA”) 2010 approval of the San Joaquin Valley’s 2004 1-hour ozone National Ambient Air Quality Standard plan (“2004 SIP”) was arbitrary and capricious, citing EPA’s failure to adequately address the potential staleness of mobile source emissions data used to formulate the plan’s emissions inventory.  The court’s decision invalidates EPA’s approval of the plan and requires the agency to conduct its review process anew.  The case potentially signals EPA’s more stringent review of the accuracy and currency of emission inventories during its plan approval process. 

Following EPA’s approval of the 2004 SIP, Sierra Club and several environmental groups petitioned the Ninth Circuit Court Appeals to review EPA’s approval on the basis that mobile source data, current at the time the plan was submitted to EPA in 2004, was outdated and inaccurate by the time the plan, which was amended in 2006 and clarified in 2008, was approved in 2010.  During the six-year period between plan submission and approval, California had replaced the computer modeling tool it used to estimate mobile source emissions with the next generation of that modeling tool, which was better able to capture emissions from heavy-duty trucks.  Also during that time period, California had presented EPA with the Valley’s 2007 SIP for the 8-hour ozone standard (“2007 SIP”), which relied on data compiled through the use of the updated tool.  The court noted that a comparison of the emissions inventories in the 2004 and 2007 plans revealed apparent disparities in emissions estimates for nitrogen oxides (NOx), with the 2004 SIP potentially underpredicting total daily NOx emissions in the Valley.  In the court’s opinion, these disparities, which the court attributed to the state’s change in modeling tools, undermined the accuracy and currency of the 2004 SIP emission inventory data.

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On Monday, the United States Supreme Court heard oral argument on Sackett v. Environmental Protection Agency (docket no. 10-1062).  At issue is whether a party who was issued a pre-enforcement compliance order from the Environmental Protection Agency (EPA) has the right to have the order judicially reviewed before EPA initiates an enforcement action. 

The Sacketts own about a half-acre vacant parcel of land in Idaho.  In early 2007, they filled the parcel with dirt and rock in preparation for building a house.  Later that year, EPA issued an administrative compliance order against the Sacketts alleging that the parcel of land is a wetland subject to the Clean Water Act (CWA) and that the Sacketts violated the CWA by filling in the land without obtaining a permit.  EPA ordered the Sacketts to return the land to its former condition or face over $30,000 in penalties per day for failure to comply. 

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Environmental groups filed suit last week in California federal court against the United States Environmental Protection Agency (EPA) alleging the agency failed to adequately regulate a federal ship sinking program, which the groups assert pollutes the sea with toxic polychlorinated biphenyls (PCBs).

The federal program, known as SINKEX, allows the Navy to engage in live fire exercises on decommissioned naval warships to practice gunnery, torpedo accuracy, and missile drills, while simultaneously disposing of obsolete ships. Basel Action Network (BAN) and the Sierra Club allege in their complaint that the ship disposal activities of the federal program pose a substantial and unreasonable risk to human health and the environment because PCBs present in electrical cable insulation, fiberglass bulkhead insulation, paints, adhesives or rubber mounts and gaskets aboard the old vessels eventually leach into the marine environment. Once these PCBs enter the marine environment they accumulate in the bodies of fish and other marine organisms that humans consume.

The groups have asked the court to compel EPA to initiate rulemaking under the Toxic Substances Control Act (TSCA), which authorizes EPA to regulate the disposal of PCBs, to more stringently regulate the Navy’s remediation of vessels designated for sink exercises, or, alternatively, to revisit the program’s ocean dumping permit.

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