Indiana Environmental Law - Commentary on State and Federal Environmental Issues Affecting Indiana

The line of Pakootas decisions just keeps growing, adding considerably to the body of CERCLA case law defining Superfund issues. 

In the most recent lawsuit, the Confederated Tribes of the Colville Reservation sued (in 2004) to recover costs associated with cleaning up environmental contamination in Washington allegedly caused by a Canadian mining company's disposal of slag and liquid effluent into the Columbia River from its mining facility in Canada. Pakootas v. Teck Cominco 2012.pdf

The State of Washington intervened as a plaintiff.  The complaint alleged that the river carried the slag and liquid waste downstream, resulting in disposal into waters of the United States.  The plaintiffs' evidence showed that before 1996, the facility  - from 1906 to 1996 - generated and discharged certain hazardous substances including slag, as a solid form and in liquid waste, arsenic, cadmium, copper, mercury, lead, and zinc into the Columbia River. The complaint also said that the river carried the slag and liquid waste downstream, resulting in disposal into waters of the United States.  Teck Cominco Metals argued that the harm caused is divisible and that it is liable only for the contamination proven to be traceable to it.

The court held that a CERCLA liability determination is based upon the language of the statute itself:

. . . [L]iability attaches when three conditions are satisfied: (1) the site at which there is an actual or threatened release of hazardous substances is a “facility” under 42 U.S.C. Section 9601(9); (2) a “release” or “threatened release” of a hazardous substance from the facility has occurred, 42 U.S.C. Section 9607(a)(4); and (3) the party is within one of the four classes of persons subject to liability under §9607(a).

The court rejected the company's argument.  It held that Teck Cominco had not proven that the environmental damage could be divided to allow for apportionment of liability.  The court also held that Teck Cominco, and not the tribes or the State, had the burden of proving divisibility.  The court also ruled that defendant's potential liability does not arise from its disposal of slag in the river, but from actual or threatened releases of hazardous substances from the slag or effluent after it came to rest in the “facility,” defined as the upper Columbia River site.  

Judge Suko wrote that “ . . . While it appears “divisibility” and “apportionment” are terms used interchangeably, what is potentially divisible is the harm, and if the harm is divisible, what is potentially apportioned is liability, assuming there is a reasonable factual basis for apportionment.”

This decision is also a good read for Judge Suko’s examination of some of the more recent contribution and apportionment appellate decisions from around the country.  A bench trial is now scheduled for September 2012 to determine whether Teck Cominco is responsible for the contamination.

Indiana's revised rules governing both confined feeding operations (CFOs) and concentrated animal feeding operations (CAFOs) go into effect July 1 of this year.

Among the changes are new restrictions to manure applications on frozen or snow-covered ground. Large CAFOs may not apply under those conditions, but with prior approval, emergency applications are allowed for CFOs, and CFOs with 120 days or less approved storage can seek approval to apply.

Farms that no longer need nor want an NPDES permit have the option to transition into regulation under the CFO program, which will be done by filing notice to IDEM.  Only those operations which actually discharge must maintain an NPDES permit.

Farms that are not required to maintain an NPDES permit may still do so. However, NPDES permit holders will have to make their nutrient management plan available for public notice and comment and changes to the plan will have to be approved by IDEM prior to being implemented.

All farms should develop appropriate nutrient application guidelines and implement them in order to seek some liability protection in case of an accidental discharge of manure from the field.

IDEM will hold four meetings across the state to help familiarize producers with the rules. The first of those meetings will be held in June.

The Cubs and Reds aren't the only contributions from our neighboring states' metropolitan areas.

EPA tells us that 45 areas across the United States have failed to attain minimum standards for ground-level ozone (smog). Indiana, however, seems to have done reasonably well with the only nonattainment areas bleeding into the state from Chicago and Cincinnati.  See map. 

In 2008, EPA set the ground-level ozone standard at 75 ppb measured over eight hours.  The previous standard was 80 ppb set in 1997.  EPA has identified fewer areas that do not meet the 2008 standards in comparison to those exceeding the 1997 standards. 

The Clean Air Act requires EPA to review and revise air quality standards every five years.  EPA had previously proposed to change the 2008 standard from 75 parts per billion measured over eight hours to 70 parts per billion. An advisory committee had recommended a range of 60 to 70 parts per billion.  The Obama Administration rejected the EPA's proposal, based upon cost of implementation and impact of stricter regulations on business. 

By doing so, the President has been sued by several environmental and public health groups argue that his decision violated the law. 

Nearly all of the 45 nonattainment areas have implemented remediation programs to improve air quality.  Three areas in two states - Wyoming and California - are identified for the first time as failing to meet smog standards. Wyoming?  Really?  Are you kidding us here?  Apparently not. 

The EPA has designated the Upper Green River Basin area of Wyoming as a nonattainment area due to a boom in natural gas drilling.  Substances contributing pollution, including volatile organic compounds and nitrogen oxides released by the drilling of new wells and equipment maintenance. Wyoming is the only state that has not previously had an area designated nonattainment for ozone.

The Seventh Circuit Court of Appeals has addressed the pollution exclusion clause yet again.  The Court's decision can be found here.  Village of Crestwood.pdf

In 1985 or 1986 Crestwood, Illinois' village officials learned from the state's environmental authorities that one of its wells was contaminated by perc (PCE-perchloroethylene, also known as tetrachloroethylene).

Village officials commited to state authorities that the well would be used only in emergencies. Instead, the well continued to be used as a source of the daily Village water supply without disclosure to the Village's residents, ostensibly for reasons of economy.

The Village used the well until 2007. The well was not sealed until 2009.  Crestwood residents, having learned of the contamination of their water supply from a series of articles in the Chicago Tribune, sued the Village and past and present Village officials in an Illinois state court seeking damages for injury to health.

In a parallel suit the State of Illinois sought an injunction requiring the Village to finance "a site inspection to determine the nature and extent of contamination" and take "all necessary steps to remediate the contamination." All these actions remain pending.

Two insurance companies, Scottsdale Indemnity and National Casualty, sued for declaratory judgment: that they have no duty either to defend a series of tort suits brought against their insureds (the Village of Crestwood, Illinois, and past and present Village officials) or to indemnify the insureds should the plaintiffs in those suits prevail.

The district court held that the allegations in the tort complaints triggered the pollution exclusion, granted summary judgment for the insurance companies, precipitating the appeals, which are multiple because there are a number of different declaratory-judgment suits.

The Seventh Circuit Court of Appeals (Posner, Wood, and Hamilton) said, "The insureds might as well be arguing that because the Village has never manufactured perc it is responsible for none of the harms that dispersing perc might cause. That would be like a murderer arguing that his victim was killed not by him but by his gun. The Village "caused" the contamination of its water supply (it could have sealed the well a quarter of a century ago, when it discovered the well was contaminated) in a perfectly good sense of the word.

Finally, in affirming the district court the Court indicates, "The insurers conceded at oral argument that the duty to defend would be activated if so enigmatic a complaint were allowed. The complaints actually filed, however, describe in copious detail the conduct giving rise to the tort suits, and in doing so inadvertently but unmistakably acknowledge the applicability of the pollution exclusion."