They Can't Make You Clean Up Your Mess

You often hear about environmental sites that are required to be cleaned up.  However, an Iowa Supreme Court case specifically addresses the Iowa Department of Natural Resources' ("DNR") ability to force cleanup of sites that do not pose a hazardous condition.  In First Iowa State Bank v. Iowa Dept. of Natural Resources, 502 N.W.2d 164, 168 (1993), the Court noted that "specific statutory authority for adopting administrative rules relating to solid waste is provided in Iowa Code Sexton 455B.304...[h]owever, no reference is made to adoption of rules relating to cleanup of open dumps.  Even the rules adopted by the DNR relating to solid waste do not provide for cleanup."  Thus, the DNR has the authority to tell you stop making a mess, but in many cases, it cannot make you clean it up. 

EPA Issues Mercury & Air Toxics Standards

Today the EPA issued new standards limiting mercury, acid gases, and other toxic pollutants from power plants.  A fact sheet is available here.  Essentially, the standards seek to eliminate 90% of mercury and air toxics from power plant emissions by year 2016.  I will provide an update setting forth how the rule will be implemented.

U.S. Supreme Court Reduces Corporate Liability in Superfund Ruling

The U.S. Supreme Court issued an opinion today that could potentially limit corporate liability in environmental cleanup cases.  Under Superfund, the Federal Policy that directs the cleanup and cost recovery for abandoned contaminated toxic waste sites, the Federal government undertakes expensive and time-consuming cleanup efforts.   Since there were no Federal environmental laws until the 1970's, many of these contaminated sites are found after decades of being buried underground. During and after cleanup, the goverment allocates responsibility, and the corresponding share of the costs, to all parties that had a part in the contamination. 

In the present case, Burlington Northern and Santa Fe Railroads et al. v. U.S., in the 1960's and 70's a chemical distribution company purchased a chemical called D-D from Shell Oil Company.  Much of this chemical was spilled and led to the contamination of the area, but the company is now defunct.  The government attempted to allocate 6% of the cleanup costs to Shell Oil, under a Superfund theory called "arranger liabilty."  This theory reasons that if a company arranges for the disposal of a hazardous waste, the company should be responsible for contamination cleanup. 

In the U.S. Supreme Court's 8-1 Opinion, written by Justice John Paul Stevens, since CERCLA does not specifically define what it means to "arrang[e] for" disposal of a hazardous substance, the phrase should be given its ordinary meaning.  In common parlance, “arrange” implies action directed to a specific purpose. Thus, to qualify as an arranger, Shell Oil must have entered into D-D sales with the intent that at least a portion of the product be disposed of during the transfer process.  Since there was no evidence of such an agreement, The Supreme Court found that Shell Oil had no liability as an arranger.