Archive for the ‘CERCLA’ Category

Nu-West vs. United States, CERCLA, RCRA, and More

Photo by Marion Doss. Some rights reserved.

A few weeks ago we reported on a recent Form 6-K filed by Agrium Inc – the parent company of Nu-West Industries – in which they disclosed earlier investigations by both the Idaho Department of Environmental Quality (IDEQ) and the EPA regarding facility- and industry-wide compliance with CERCLA, as well as possible violations of RCRA and the CAA.

The Form 6-K also revealed that Nu-West had entered into a voluntary consent order with the EPA (signed in 2009), which compelled them to “identify actual or potential human and/or ecological receptors to fully determine the nature and extent of the presence and/or release of hazardous wastes at or from the facility.” The filing goes on to affirm that the company is “working cooperatively with EPA and the IDEQ to implement this environmental assessment.”

The facility in question is a phosphate mine located in Conda, Idaho, but this isn’t the first time Nu-West’s Idaho facilities have come under attack. Nu-West had been leasing land in Idaho from the US federal government for decades when they “discovered” selenium contamination at several mining sites in the1990s. They later claimed that the US had known about the contamination for years without making the information public.

In 2009, Nu-West filed a complaint against the federal government, asserting that once Nu-West found out about the contamination, they “worked diligently to investigate and remediate the Mine Sites,” while the United States “has not cooperated in any fashion.” They went on to argue that “[a]lthough the United States is the landowner and the party most responsible for the selenium contamination at the Mine Sites, the United States chose to oversee the cleanup of the Mine Sites itself and has demanded that Plaintiffs conduct the remediation at their sole expense.”

The complaint sought to recover approximately $10 million in costs incurred by Nu-West in connection with the remediation of the Idaho mine sites, and on March 4, 2011 – just three days before the Form 6-K was filed – the court sided with Nu-West. In the order, the court deemed the United States “an owner, operator, and arranger for purposes of 42 USC § 9607(a) with regard to the CERCLA clean up costs sought in this case.”

What does this mean for the US as landowner? While it’s currently unclear exactly how much the government will have to dish out in this particular case, according to Marten Law, the decision could give the government “a share of cleanup costs on leased property throughout the nation.” For thorough background on CERCLA liability, and the definitions of “owner,” “operator,” and “arranger” thereunder, I recommend reading Marten Law’s recent article on the case.

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