May 01, 2013

In Brief

Theodore L. Garrett


The Ninth Circuit dismissed an interlocutory appeal of a lower court ruling granting relief to a county that was obligated by a consent decree to implement a remedial plan. United States v. El Dorado County, 704 F.3d 1261 (9th Cir. 2013). The district court held that the county’s implementation costs had increased as a result of errors in a U.S. Forest Service cleanup plan and therefore that the U.S. Forest Service must pay those costs. The Ninth Circuit held that the suspension of the consent decree was not a final appealable order because it was not an order modifying an injunction under 28 U.S.C. 1292(a)(1).

A party to a 2002 administrative settlement with the government is not prohibited from seeking cost recovery against other potentially responsible parties under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) section 107(a). Bernstein v. Bankert, 702 F.3d 964 (7th Cir. 2012). Section 113(f)(3)(B) of CERCLA allows a person “who has resolved its liability to the United States … in an administratively … approved settlement” to bring a contribution action. The basis for a section 113 contribution action “is not the fact of settlement,” the court stated, but “the resolution of liability through settlement” that occurs when remediation is certified as complete. Because in this case the party had not completed remedial action under the Administrative Order on Consent, the court reasoned, plaintiffs had not “resolved their liability” to the United States and thus could bring a claim under section 107(a) that is timely under that provision’s statute of limitations period.

A district court held that a Canadian company could be responsible for contamination of soil in the United States. Pakootas v. Teck Cominco Metals, Ltd., No. CV-04-256-LRS, 2012 WL 6546088 (E.D. Wash. Dec. 14, 2012). The company was an arranger because it intentionally released slag and other waste into the Columbia River with knowledge the waste would be transported to Washington State. The court also held that the exercise of jurisdiction did not conflict with the sovereignty of Canada because the application of CERCLA is not extraterritorial but rather the cleanup of pollution due to releases of hazardous substances in the United States.

A court of appeals upheld the government’s refusal to provide reports, requested under the Freedom of Information Act (FOIA), that the government cited and relied on to support CERCLA settlements with third parties. Appleton Papers, Inc. v. EPA, 702 F.3d 1018 (7th Cir. 2012). The documents in question were prepared for the government’s use in litigation and thus were work product, at least in part, and thus protected under FOIA exemption 5. The court rejected Appleton’s attempted distinction between fact and opinion work product, stating that Federal Rule of Civil Procedure 26(b)(3) “protect[s] both types.” The court noted that the requesting entity, Appleton Papers, Inc., has remedies in the event the government wishes to use the information against it in future litigation, but the “FOIA is not a substitute for discovery.”

Air quality

The D.C. Circuit vacated EPA’s 2012 projection of cellulosic biofuel production in EPA’s 2012 renewable fuel standards. Am. Petroleum Inst. v. EPA, 706 F.3d 474 (D.C. Cir. 2013). The D.C. Circuit rejected API’s challenge to EPA’s refusal to lower the applicable volume of advanced biofuels for 2012. However, the court agreed with API that EPA’s methodology for making its cellulosic biofuel projection reveals a bias in favor of “promoting growth” in the biofuel industry that has no basis in the Clean Air Act.

The D.C. Circuit vacated EPA’s rules for “significant monitoring concentrations (SMCs)” and also EPA’s “significant impact levels (SILs)” for fine particulate matter less than 2.5 microns in diameter (PM2.5). Sierra Club v. EPA, 705 F.3d 458 (D.C. Cir. 2013). The Sierra Club argued that various sources in an attainment area could cumulatively cause or contribute to a violation of the National Ambient Air Quality Standards (NAAQS) or allowable increases above a baseline, “increments.” The court granted EPA’s request that the SILs be vacated because EPA did not have authority to promulgate such a broad exemption of sources with a proposed impact below the SIL. With respect to SMCs, the court held that EPA does not have authority to exempt sources with PM2.5 impacts less than the SMC from preconstruction monitoring requirements. The decision stated that a permitting authority cannot know how close an area is to violating the NAAQS or increments unless it knows the existing ambient concentrations of PM2.5 before a source is constructed or modified. The court also noted Congress’s mandate that the results of the air quality analysis be available to the public at the time of a hearing on a Prevention of Significant Deterioration permit.

The D.C. Circuit remanded EPA’s fine particulate matter implementation rule and new source review rule for fine particulate matter less than PM2.5. Natural Res. Def. Council v. EPA, 706 F.3d 428 (D.C. Cir. 2013). The court agreed with petitioners that EPA erred in applying the general and less stringent provisions of Title I, Part D, Subpart 1 of the Clean Air Act rather than the particulate-matter-specific provisions of Subpart 4 of Part D. The court rejected EPA’s argument that Subpart 4 expressly refers only to particulate matter with a diameter of 10 microns or less (PM10), holding the scope of Subpart 4 did not change when EPA subdivided PM 10 to include PM2.5.

Water quality

The Supreme Court held that stormwater discharges from logging roads are not “associated with industrial activity” and do not require permits under the Clean Water Act’s National Pollutant Discharge Elimination System (NPDES) program. Decker v. Northwest Envtl. Def. Ctr., 133 S. Ct. 1326 (2013). Northwest Environmental Defense Center filed a citizens suit alleging that Georgia-Pacific West uses logging roads that channel stormwater into ditches, culverts, and channels, and that the company had not obtained NPDES permits for stormwater runoff from the logging roads. The Court held that the prior Industrial Stormwater Rule, as permissibly construed by EPA, exempts discharges of channeled stormwater runoff from logging roads and instead extends only to traditional industrial buildings such as factories and associated sites and other relatively fixed facilities. The Court also held that EPA’s amendment of the rule to expressly exempt such discharges, announced just prior to oral argument, did not render the case moot. Justice Scalia dissented in part, stating that the majority’s deference to EPA’s interpretation of its regulations contravened a fundamental principle of separation of powers, namely that “the power to write a law and the power to interpret it cannot rest in the same hands.” Chief Justice Roberts wrote a concurring opinion, joined by Justice Alito, stating that it may be appropriate to reconsider the principle of deference to an agency’s interpretation of its regulations in an appropriate future case.

A district court held that held that EPA does not have authority to regulate Total Maximum Daily Loads (TMDLs) for stormwater flow rates. Virginia Dep’t of Transp. v. EPA, No.1:12 CV-775, 2013 WL 53741 (E.D. Va. Jan. 3, 2013). The opinion stated that “pollutant” is a statutorily defined term that does not include stormwater, and rejected EPA’s argument that the agency could establish a TMDL for stormwater as a surrogate for regulating sediment that flows into an impaired water body. The district court concluded that: “Whatever reason EPA has for thinking that a stormwater flow rate TMDL is a better way of limiting sediment load than a sediment load TMDL, EPA cannot be allowed to exceed its clearly limited statutory authority.”


A court of appeals affirmed the dismissal of a suit against a company that shipped carpet waste to plaintiff’s lessee for the purpose of manufacturing building materials. Premier Assocs. Inc. v. EXL Polymers Inc., No 12-10325, 2013 WL 425972 (11th Cir. Feb. 5, 2013) (not for publication). The carpet selvedge at the site was not recycled but instead was stored on site. The court held that recovered materials are excluded from the definition of solid waste, and there was no genuine dispute of fact that the carpet waste could be feasibly used, reused, or recycled. The fact that the carpet waste was not recycled does not prevent it from qualifying as a recovered material, the court stated, and the lessee rather than defendant accumulated the material. Further, to the extent that plaintiff’s nuisance claim was based on something other than a regulatory duty, the district court correctly rejected the contention that defendant had improperly disposed of the waste.

Theodore L. Garrett


Theodore L. Garrett is a partner at Covington & Burling LLP in Washington, D.C. He is a former chair of the Section and a contributing editor of Trends.