Environmental Lawyer Blog

This week, in the case of Solutia, Inc. and Pharmacia Corp. v. McWane, Inc. (Solutia), the Eleventh Circuit held that a party that performs a cleanup in compliance with a consent decree has no right under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) section 107(a) to recover its cleanup costs.  This case represents a continuance of the courts’ clarification of when claims can be brought under CERCLA sections 107(a) and 113(f).  To understand the significance of this case, it is best to start by examining the United States Supreme Court cases that proceeded it, beginning with the Supreme Court’s decision in Cooper Indus., Inc. v. Aviall Servs., Inc., 543 U.S. 157 (2004).

In Cooper v. Aviall, the Supreme Court turned decades of CERCLA jurisprudence on its head.  Relying on the plain language of CERCLA section 113(f), the court held that a potentially responsible party (“PRP”) can only seek contribution under section 113(f) from other parties “during or following” a civil action under CERCLA section 106 or 107.  Therefore, a party that had not been sued and had not entered into a settlement could not seek contribution under CERCLA section 113(f).  The court did not address when a party could bring an action under section 107. 

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Okay, so it will probably come as no surprise to those readers that know anything about perc (also known as PCE, short for perchloroethylene, another name for tetrachloroethylene – whew!) that, when the U.S. Environmental Protection Agency (EPA) released it’s final health assessment for the chemical this week, EPA essentially concluded “yep, it’s still bad stuff.”  More specifically (and much more scientifically), the assessment characterized it as a “likely human carcinogen.”  In addition, the assessment cited non-cancer long-term health effects including harm to the nervous system, kidney, liver, immune and hematologic systems. 

Perc is best known for being the chemical solvent widely used in the dry-cleaning industry.  Discharges of perc (mainly from dry-cleaning facilities) have contributed to contamination at many properties.  According to EPA, hundreds of Superfund sites in the country have perc as a contaminant. 

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Last week, the California State Water Resources Control Board (SWRCB) gave notice of public opportunity to comment on its proposed April adoption of the Water Quality Control Policy for Low-Threat Underground Storage Tank Case Closure (Low-Threat Closure Policy). This should come as welcome news for the thousands of underground storage tank (UST) sites in California because the Low-Threat Closure Policy will hopefully make it easier to obtain closure. 

The Low-Threat Closure Policy recognizes that many petroleum release cases pose a low-threat to human health and the environment. The policy’s purpose is to establish consistent California statewide case closure criteria for low-threat petroleum UST sites. To potentially qualify for closure, the site must satisfy eight general criteria (applicable to all sites), as well as media-specific criteria as it pertains to groundwater, vapor intrusion to indoor air and direct contact, and outdoor air exposure. Below is a brief description of each of these criteria.

The general criteria are as follows:

• Site must be in a service area of a public water system:  The policy recognizes that while new water supply wells are unlikely to be installed in the shallow groundwater near former UST release sites, it is difficult to predict whether this will always be the case, particularly in rural areas that are undergoing new development. Therefore, the policy is limited to areas with available public drinking water supplies. Continue reading →