We are pleased to present you with Taft’s Environmental newsletter, a collection of insights from our team to yours. For more information on our environmental practice, please visit www.taftlaw.com.

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ARTICLES
EPA Issues Revised Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) Landowner Defense Guidance
By: Chase Dressman

EPA has updated its standard guidance on CERCLA’s landowner defenses for the first time since 2003. The new guidance, issued on July 29, 2019, is titled, "Enforcement Discretion Guidance Regarding Statutory Criteria for Those Who May Qualify as CERCLA Bona Fide Prospective Purchasers, Contiguous Property Owners, or Innocent Landowners," and it supersedes EPA’s three “interim” CERCLA landowner defense guidance documents that were issued in March 2003. You can access EPA’s new guidance here.

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EPA Issues Guidance to Glyphosate Registrants Regarding Inconsistent FIFRA and California Labeling Requirements
By: Chase Dressman

EPA issued new guidance on Aug. 9 to registrants of pesticide products containing the active ingredient glyphosate (available here). The guidance aims to clarify required and allowed labeling for pesticide products containing glyphosate in light of the inconsistencies between requirements under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) and the State of California’s Proposition 65.

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Seventh Circuit Ends Bid to Shift 19-Year-Old Environmental Liability
By: Jeff Stemerick

In 1998, Refined Metals Corporation (Refined Metals) entered into a consent decree with the Environmental Protection Agency that required it to close and remediate a lead smelter site. Nearly 19 years later, Refined Metals sued former owner NL Industries, Inc. (NL) under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) seeking to recoup some of its clean up costs. The suit seemed like a classic contribution claim under CERCLA section 113(f). Because any contribution claim would be barred by a three-year statute of limitations which begins to run when a party resolves its environmental liability to the United States or a state, Refined Metals advanced three creative longshot arguments in an attempt to characterize the claim as a cost recovery action under CERCLA section 107(a). If the action was actually a cost recovery action, Refined Metals would have had a chance to make another longshot argument that the six-year cost recovery statute of limitations had not run. The court in Refined Metals Corp. v. NL Industries, Inc., ___ F.3d ___, No. 18-3235, 2019 WL 3955889 (7th Cir. Aug. 22, 2019), never addressed that issue because it rejected all three of Refined Metals’ arguments as to why its action was not a contribution claim.

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Seventh Circuit Resolves Decades-Long Wetlands Dispute in Favor of Farmer—Holds USDA Wetlands Determination Was Arbitrary
By: Will Gardner

When Mr. and Mrs. Boucher cut down nine trees on their farm in 1994, they surely had no idea that it would spark a dispute with the United States Department of Agriculture (USDA) that would take decades to resolve and end up before the Seventh Circuit Court of Appeals. In a decision dated Aug. 8, 2019, the Seventh Circuit vindicated the Bouchers’ actions and reversed the USDA’s determination to strip the Bouchers of their USDA benefits based on the alleged conversion of “wetlands” as a result of cutting down those nine trees. Boucher v. USDA, __ F.3d ___, No. 16-1654, 2019 WL 3729270 (7th Cir. Aug. 8, 2019).

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