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June 23, 2009 |
State-Issued "No Further Remediation" Letter May Not Defeat RCRA Claims A recent federal district court opinion brings into sharp focus the advice that Schiff Hardin's Environmental Group provides with respect to any environmental remediation project: the closure certificate under any remediation program is only as good as the documentation that backs up the work. The case below highlights the risk of future liability when properties near the subject property are not wholly remediated. The District Court for the Northern District of Illinois, in Snellback Properties LLC v. Aetna Development Corp, et al., No. 08 C 7326, slip op. (N.D. Ill. June 9, 2009), held that the fact that a defendant's property has been issued a "No Further Remediation" (NFR) letter by a state environmental agency will not, as a matter of law, necessarily defeat allegations that the property that is the subject of the NFR letter poses a serious health or environmental threat that could entitle a plaintiff to relief under the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. ý 6972. Judge Guzman held that the issuance of an NFR letter means only that the defendant has been released from liability with respect to state law claims, but does not constitute a release under RCRA. Furthermore, while an NFR letter is prima facie proof that the subject property is contaminant-free, it is not conclusive. A plaintiff could still prove that contamination from the subject property migrated onto an adjoining parcel and presents "an imminent and substantial danger to health or the environment." The court therefore denied this defendant's motion to dismiss the case. This case simply highlights what the Illinois program — like other state voluntary remediation programs — makes clear in the authorizing statute. The presumption established by an NFR letter may be rebutted if a cleanup is later proven to be incomplete. For an NFR letter to protect the land holder, the investigation and cleanup work must be complete and well-documented. As a reminder to all, U.S. EPA, Region V, has a Memorandum of Understanding (MOU) with the State of Illinois that indicates U.S. EPA will not pursue an enforcement action under RCRA or other federal statutes against the holder of an NFR letter except in exceptional circumstances where the site poses an imminent threat or emergency situation. The MOU does not protect the holder from lawsuits by third parties. For questions regarding this Environmental Update, please contact any of the attorneys in Schiff Hardin's Environmental Group. RECENT ENVIRONMENTAL PUBLICATIONS
"Eleventh Circuit Court of Appeals Upholds Bush-Era Rule that Allows Water Transfers Without an NPDES Permit," Environmental Update (June 11, 2009) ABOUT SCHIFF HARDIN LLP Schiff Hardin's diverse environmental practice advises clients engaged in a wide variety of industries and commercial endeavors such as electric generation, natural gas distribution and production, chemical manufacturing, auto and auto parts manufacturing, consumer goods manufacturing, real estate development and investments by financial institutions and equity investors. For more information, contact us.
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