Changes in Environmental Law of General Applicability

     CERCLA Issues.

   Rights of Potentially Responsible Parties to Recover Costs

United States v. Atlantic Research Corp., decided June 11, 2007. Facts: After Atlantic Research cleaned up a Government site it leased and contaminated while doing government work, it sued the Government to recover some of its costs under CERCLA section 107(a). Holding: The Supreme Court held that section 107(a) permits cost recover (as distinct from contribution) by a private party that has itself incurred cleanup costs.  There will still be equitable distribution of reimbursement costs since there is joint and several liability under section 107 through the filing of a counterclaim by a PRP sued by another PRP.  Results: If a PRP has not been sued for contribution, that PRP may seek cost recovery under section 107(a).

     All Appropriate Inquiry.

Petroleum - The Coast Guard published a proposed rule on All Appropriate Inquiry for establishing a defense to liability of an owner or operator of a facility that is the source of a discharge of oil into navigable waters. To be entitled to the defense, those persons must show, among other things, that before acquiring the real property on which the facility is located, they had made all appropriate inquiries into its previous ownership and uses to determine the presence or likely presence of oil. This proposed rule is
consistent with a final rule on this subject published by the Environmental Protection Agency. 72 Federal Register 32232-46, June 12, 2007.

     SPCC Deadline Extended.

The Environmental Protection Agency on May 16, 2007 extended the
dates by which facilities must prepare or amend Spill Prevention, Control, and Countermeasure (SPCC) Plans, and implement those Plans. As a result of the revisions in Sec.  112.3(a)(1), an owner or operator of a facility (other than a farm) that was in operation on or before August 16, 2002 must make any necessary amendments to his SPCC Plan, and implement that Plan, on or before July 1, 2009. Federal Register, May 16, 2007, 72 F.R. 27443.