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Weekly Update Volume 34, Issue 2

01/12/2004

LITIGATION

Note: The cases listed are available from the ELR Document Service.

CERCLA, SUBROGATION, COST RECOVERY, INSURANCE COVERAGE:

A district court held that an insurer of a PRP may not seek to impose joint and several liability against defendant PRPs under CERCLA §107. CERCLA allows those who "pay compensation" to another for damages or costs resulting from a release of a hazardous substance to recover those expenses by bringing a subrogation action. Such actions are the traditional means by which insurance companies may recoup. While an insurer can bring a subrogation action as provided in CERCLA, it may not also bring a §107 action as a separate and distinct basis for recovery. A PRP cannot bring a §107(a) action to hold other PRPs jointly and severally liable. It thus follows that in a subrogation action, the insurer cannot divorce itself from its insured's status as a PRP, and being limited to its insured's rights and claims, cannot impose joint and several liability on the other PRPs. Further, if the insurer were allowed to bring a §107(a) action, it would not be limited to whatever rights the insured has, but would be able to hold other PRPs jointly and severally liable for its indemnification costs. It follows that if the subrogation and §107(a) actions were interpreted as cumulative remedies, liability insurers would always seek recovery pursuant to §107(a), thereby nullifying CERCLA's subrogation provision. The insured's claim for contribution under CERCLA §113 was likewise dismissed.California Department of Toxic Substances Control v. City of Chico, No. CIV. S-02-442 LKK/DAD (E.D. Cal. Jan. 4, 2004) (Karlton, J.) (10 pp.).

CERCLA, CONTRIBUTION ACTIONS, SAVINGS CLAUSE:

A district court dismissed a company's CERCLA §113(f) contribution claim against the United States. The only cause of action permitting a CERCLA contribution action is a primary action brought pursuant to CERCLA or a release from CERCLA liability pursuant to §113(f)(3). Here, there is no prior or ongoing §106 or §107 action. In addition, there is no prior settlement under §113(f)(3). Moreover, the savings clause, CERCLA §113(f)(1), is not available. Actions brought under the savings clause must meet all the traditional common law elements of a contribution action, i.e., a prior or ongoing lawsuit. Nothing in the legislative history of CERCLA indicates that Congress allowed for a contribution action to be brought absent a primary completed or ongoing lawsuit. The savings clause merely clarified that a settlement releasing a would-be contribution action plaintiff from CERCLA liability against the primary plaintiff or settlor allows the contribution action plaintiff to bring a contribution action--even absent any prior lawsuit under under §106 or §107. In addition, a primary action brought under any other federal statute, including a RCRA permit program, absent express statutory authority, is insufficient to permit the derivative CERCLA contribution action. Likewise, a primary action brought under state common law or state statutory law is also procedurally insufficient to permit a CERCLA derivative contribution action. The purpose of the savings clause was to clarify that a contribution action brought following a settlement under the aegis of §113(f)(3) should not be held to be procedurally insufficient because of an absence of a prior primary action brought pursuant to CERCLA §§106 or 107.E.I. DuPont de Nemours v. United States, No. 97-497 (WJM) (D.N.J. Dec. 30, 2003) (Martini, J.) (18 pp.).

FLPMA, FEDERAL ADVISORY COMMITTEE ACT (FACA), RESOURCE ADVISORY COUNCILS (RACs):

The Tenth Circuit, in a per curiam opinion, reversed in part and affirmed in part a district court ruling dismissing a challenge to appointments made by the Secretary of the Interior, under FLPMA, to three RACs for the state of Colorado. RACs are designed to be representative of major groups with interests in federal lands, and they make recommendations to the Secretary and the BLM about federal land use policy. The complaint first alleged that the appointments were made without the letters of reference from the interest or organization each nominee was to represent. Second, it alleged that the appointments resulted from inappropriate influence by Colorado's governor. Third, the complaint alleged that the appointments did not satisfy the regulations' requirement that RAC membership provide balanced representation within each of the three categories of interests that must be represented. The district court concluded both that the plaintiffs lacked standing and that FACA and the applicable regulations were too vague to provide a meaningful legal standard to adjudicate the plaintiffs' claims. Contrary to the district court, only one of the three plaintiffs lacked standing. In addition, only the first and second allegation fail to provide a meaningful standard for evaluating the RAC appointment decisions. The "fair membership balance" requirement of 43 C.F.R. §1784.2-1(a) provides a meaningful legal standard for judicial review. The district court, therefore, erred in dismissing this claim.Colorado Environmental Coalition v. Wenker, No. 02-1254 (10th Cir. Jan. 7, 2004) (20 pp.).

ESA, FIFTH AMENDMENT TAKINGS, DAMAGES:

The Court of Federal Claims held that the value of water rights taken by the federal government in its application of the ESA to the California state water system amounts to $13,915,364.78, plus interest at the rate specified in 40 U.S.C. §258e-1. The plaintiffs were California water users who, pursuant to an April 30, 2001, liability determination by the court, are owed Fifth Amendment compensation for the loss of their contractually conferred water as a result of restrictions imposed by the government to protect the delta smelt and winter-run chinook salmon.Tulare Lake Basin Water Storage District v. United States, No. 98-101 L (Fed. Cl. Dec. 31, 2003) (Wiese, J.) (25 pp.).

Copyright© 2004, Environmental Law Institute, Washington, D.C. All rights reserved

THE FEDERAL AGENCIES

Note: Citations below are to the Federal Register (FR).

AIR:

  • EPA promulgated NESHAPs for the lime manufacturing source category, requiring that lime kilns, lime coolers, and various types of processed stone handling operations that qualify as major sources meet emission standards the reflect the application of maximum achievable control technology.69 FR 393(1/5/04).
  • EPA proposed to revoke the Puerto Rico Environmental Quality Board's fiscal year 2002 CAA §105 grant because the board did not satisfy statutory requirements for maintenance of effort; the board's recurrent expenditures of non-federal funds for air pollution control programs were less in fiscal year 2002 than in fiscal year 2001.69 FR 339(1/5/04).

HAZARDOUS AND SOLID WASTES:

  • EPA entered into a proposed administrative settlement under CERCLA concerning off-site discharge of PCB-contaminated oil from former oil storage lagoons at the General Oil facility in Northville, Michigan; the settling parties must implement a removal action the addresses the PCB-contaminated oil discharge into a Northville city park pond and pay $50,000 in EPA oversight costs.69 FR 1586(1/9/04).
  • EPA entered into a proposed prospective purchaser agreement under CERCLA concerning the Grant Warehouse time-critical removal site in Portland, Oregon; the agreement would resolve the United States' claims against the Portland Development Commission.69 FR 343(1/5/04).

HAZARDOUS SUBSTANCES:

  • DOT's Research and Special Programs Administration (RSPA) announced a rule requiring operators of hazardous liquid pipelines subject to RSPA safety regulations to prepare and file annual reports containing information about their pipeline systems.69 FR 537(1/6/04).

HERBICIDES AND PESTICIDES:

  • EPA granted experimental use permits to Dow AgroSciences LLC and Pioneer Hybrid International Inc. allowing--for experimental and research purposes only--the use of the plant-incorporated protectant Bacillus thuringiensis proteins and the genetic material necessary for their production on 624 acres of field corn.69 FR 658(1/6/04).
  • USDA's Animal and Plant Health Inspection Service requested public comment on whether creeping bentgrass, a plant genetically modified for tolerance to the herbicide glyphosate, presents a plant pest risk and/or is associated with other environmental effects; the request is in response to a petition from the Monsanto Company and the Scotts Company seeking a determination of nonregulated status for the grass.69 FR 315(1/5/04).
  • EPA announced the availability of a final report titledDeveloping Relative Potency Factors for Pesticide Mixtures: Biostatistical Analyses of Joint Dose-Response.69 FR 920(1/7/04).

MINING:

  • OSM proposed to amend its regulations to minimize the adverse environmental effects stemming from the construction of excess spoil fills and to clarify the circumstances in which mining activities, such as the construction of excess spoil fills, may be allowed within the stream buffer zone (within 100 feet of a perennial or intermittent stream).69 FR 1035(1/7/04).

RESOURCE MANAGEMENT:

  • USDA's Forest Service requested comment on an interim final rule that specifies the process by which the public may seek administrative review and file objections to proposed hazardous fuel reduction projects authorized by a component of the President's Healthy Forests Initiative, the recently enacted Healthy Forests Restoration Act of 2003; the interim rule describes public notification procedures, the objection filing period, objection filing procedures, and eligibility status and qualifications necessary for parties submitting objections.69 FR 1529(1/9/04).
  • BLM announced the availability of a proposed amendment to and a final EIS for the federal fluid minerals leasing and development management plan prepared for approximately 1.8 million surface acres and 5 million subsurface acres in New Mexico's Sierra and Otero Counties; the land use plan focuses on multiple use management and sustained yield objectives.69 FR 1596(1/9/04).

RISK AND IMPACT ASSESSMENT:

  • EPA announced the availability of a final report titledThe Feasibility of Performing Cumulative Risk Assessments for Mixtures of Disinfection By-Products in Drinking Water.69 FR 919(1/7/04).
  • EPA announced the availability of a final report titledAnalysis of Laboratory and Field Studies of Reproductive Toxicity in Birds Exposed to Dioxin-Like Compounds for Use in Ecological Risk Assessment.69 FR 920(1/7/04).

WATER QUALITY:

  • EPA announced the availability of and requested scientific views on a draft aquatic life criteria document for nonylphenol.69 FR 340(1/5/04).

WILDLIFE:

  • FWS issued its 90-day finding for a petition to list the eastern subspecies of the greater sage-grouse as endangered and determined that the petition did not present substantial scientific or commercial information indicating that listing the subspecies may be warranted.69 FR 933(1/7/04).

DOJ NOTICES OF SETTLEMENTS:

  • United States v. Saunders Supply Co., No. 2:03CV889 (E.D. Va. Dec. 22, 2003). Settling CERCLA defendants must pay $380,000.00 in past U.S. response costs incurred at the Saunders Supply Company, Inc., site in Chuckatuck, Virginia.69 FR 938(1/7/04).
  • United States v. Stepan Co., No. 03-5897 (D.N.J. Dec. 15, 2003). A settling CERCLA defendant must pay a $30,000 civil penalty and must pay $35,000 in past response costs incurred at the D'Imperio Property Superfund site in Hamilton Township, New Jersey.69 FR 938(1/7/04).
  • United States v. Winitsky Associates, No. 2:03-cv-6935 (E.D. Pa. Dec. 30, 2003). A settling CERCLA defendant must pay $248,531.68 in past U.S. response costs incurred at the East Tenth Street Superfund site in Delaware County, Pennsylvania.69 FR 938(1/7/04).

Copyright© 2004, Environmental Law Institute, Washington, D.C. All rights reserved. 

THE CONGRESS

Congress is currently not in session but will reconvene January 20, 2004, for the second session of the 108th Congress.

Copyright© 2004, Environmental Law Institute, Washington, D.C. All rights reserved. 

IN THE STATES

Click on a state name below to see its information in ELR UPDATE. Or go to http://www.elr.info/State/stateupdate.cfmto view the complete section.

Copyright© 2004, Environmental Law Institute, Washington, D.C. All rights reserved.

INTERNATIONAL

GENERAL:

  • A significant increase in the demand for herbal medicines could lead to the extinction of one-fifth of the world's 50,000 medicinal plant species, according to astudypublished in the journalNew Scientist.

EUROPE:

  • The European Commission (EC) requested that Belgium and Spain comply with 2003 rulings of the European Court of Justice concerning their failure to adopt and notify national legislation implementing a European Union directive (98/81/EC) on the contained use of genetically modified microorganisms. The required national legislation should have been implemented by June 5, 2000. Commenting on the decisions, EC Environment Commissioner Margot Wallström said: "I am disappointed that Belgium and Spain are now over three years late in completing the transposition of this Directive. I urge them to put the remaining national legislation in place as soon as possible."

CLIMATE CHANGE:

  • A study published in the journalNatureconcludes that global warming will, unless present trends are reversed, likely lead to the extinction of one-fourth or more of all animal and plant species by 2050. The combined effects of global warming, increased large-farm agriculture, and invasive species will destroy native habitats. If threatened species were unable to migrate to other suitable habitats, up to 37% of all existing species would become extinct. Chris Thomas, a University of Leeds conservation biology professor and primary author of the study,Feeling the Heat: Climate Change and Biodiversity Loss, said that "the midrange estimate is that 24 percent of plants and animals will be committed to extinction by 2050. We're not talking about the occasional extinction--we're talking about 1.25 million species. It's a massive number." The study is the first to examine the effects of global warming on animal and plant species worldwide, although ocean species were not addressed.

Copyright© 2004, Environmental Law Institute, Washington, D.C. All rights reserved. 

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