Jump to Content

Weekly Update Volume 40, Issue 30

10/18/2010

LITIGATION 

CAA, MODIFICATIONS:

The Seventh Circuit reversed and remanded a lower court decision finding a coal-fired electric power plant in the Midwest liable for making "major" modifications to the plant without first obtaining a permit from EPA in violation of the CAA. The CAA does not authorize the imposition of sanctions for conduct that complies with an SIP that EPA approved. As for increases in sulfur dioxide emissions, the modifications at issue here are governed by the state plan that EPA had approved in 1982. That plan provided that hourly capacity rather than annual emissions determined whether a permit was required for a modification. Although Indiana had amended the SIP to conform the definition of modification to the actual-emissions standard, it did not submit an amended plan, with the critical change, until several years later--after the modifications at issue in this case took place. With respect to the emissions of nitrogen oxide, the parties agree that the actual-emissions standard controls. Nevertheless, the lower court erred in allowing EPA’s expert witnesses to testify that the modifications made would result in an increase in annual emissions beyond what the SIP permitted. The formula the experts used was designed for use with baseload electric generating plants rather than for cycling facilities. Their evidence, therefore, should not have been admitted. And without expert testimony to support an estimate of actual emissions caused by the modification, the government cannot prevail. Accordingly, the case was reversed and remanded.United States v. Cinergy Corp., Nos. 09-3344 et al., 40 ELR 20266 (7th Cir. Oct. 12, 2010).

ESA, "SPECIES":

A district court remanded FWS' finding that listing the Gunnison's prairie dog under the ESA was warranted within the "montane portion" of its range in central and south-central Colorado and north-central New Mexico but not warranted within the remaining "prairie portion" of its range. The FWS cannot determine that anything other than a species, as defined by the ESA, is an endangered or threatened species. The ESA permits the FWS to treat subspecies and distinct population segments of a species differently by designating them as separate species. And while there may be ways to treat prairie dogs in the prairie differently than prairie dogs in the mountains under the statute, altering Congress' definition of endangered and threatened species is not one of them. Because there is no species called the montane Gunnison's prairie dog, FWS' finding runs counter to the plain language of the ESA, and the FWS' finding was set aside and remanded.Wildearth Guardians v. Salazar, No. 09-00574, 40 ELR 20272 (D. Ariz. Sept. 30, 2010) (Martone, J.).

CERCLA, LIABILITY:

A district court dismissed, without prejudice, a company's third-party complaint against a family estate for contribution costs related to PCE contamination at a shopping center. The claims against the estate were timely. But because the decedent's involvement in the PCE contamination, investigation, and remediation of the shopping center was limited to his role as co-trustee of the group that owned the shopping center, he is not personally liable for recovery costs under CERCLA. The complaint failed to plausibly allege that any of the exceptions to CERCLA's fiduciary exemption apply. Accordingly, the decedent's personal assets cannot be reached through the estate.Palmtree Acquisition Corp. v. Neely, No. 08-3168, 40 ELR 20271 (N.D. Cal. Oct. 4, 2010) (Patel, J.).

RCRA, INJUNCTIONS:

A district court dismissed gas station operators' citizen suit against an oil company for alleged RCRA and UST regulation violations and vacated a preliminary injunction ordered against the company in a previous ruling. The operators alleged that releases of petroleum product from three USTs, formerly owned by the company, caused the contamination of soil and groundwater at and near the property where they operated their service station. The operators failed to establish the potential for an imminent and substantial endangerment to the environment at the site. While “imminence” does not require that the “harm necessarily will occur or that the actual damage will manifest itself immediately,” it must, nevertheless, be of the “kind that poses a near-term threat.”  As for the preliminary injunction previously issued, the court determined that the operators, in particular their expert, misled the court with inaccurate representations about the site and with false testimony about the extent of contamination and risks associated with it. Now that it is clear that the injunction was wrongfully obtained, the operators are left with the result of the equitable relief they sought. Accordingly, the company will recover a grand total of $512,823.98 from the operators for the combined costs of the site assessment and expert services. The company may also recover attorneys' fees in an amount to be later determined by the court.Sánchez v. Esso Standard Oil de Puerto Rico, Inc., No. 08-2151, 40 ELR 20270 (D.P.R. Sept. 29, 2010) (Fusté, J.).

INSURANCE, "SUIT":

A district court held that a request for information from EPA to a cement company under CERCLA §104(e) constitutes a "suit" under the terms of the company's insurance policies, thereby triggering the insurers' duty to defend. Under the Oregon Environmental Cleanup Assistance Act (OECAA), the EPA letter was equivalent to a "suit seeking damages." The insurers argued that a §104(e) letter does not constitute a "suit" under the OECAA because the statute requires either an "action" by EPA "against" the insured, or an "agreement" between EPA and the insured, in which EPA requests that the insured take action with respect to contamination. Here, the §104(e) letter says that while EPA seeks the company's "voluntary cooperation," compliance with the request is required by law, and that if the company fails to respond fully within a certain time, EPA can commence an action for civil penalties of up to $32,500 per day for noncompliance. Thus, the letter is not merely a request that the company provide information; it contains a threat of legal action and substantial penalties for failure to comply with the request. The insurers, therefore, have a duty to defend the company.Ash Grove Cement Co. v. Liberty Mutual Insurance Co., No. 09-239, 40 ELR 20269 (D. Or. Sept. 29, 2010) (King, J.).

JURISDICTION, REMOVAL:

A district court denied Louisiana's motion to remand to state court its lawsuit against BP for damages stemming from the Deepwater Horizon oil spill. Louisiana originally filed the complaint in state court, asserting only a cause of action under state law and specifically stating that it "does not plead, and will never at any time in the future plead, any claim or cause of action arising under any federal law." Nevertheless, on June 17, 2010, BP removed the matter to the Eastern District of Louisiana. The state then filed the current motion to remand, alleging that the case was improperly removed. The federal court, however, has original jurisdiction under §1349 of the Outer Continental Shelf Lands Act. Thus, neither the well-pleaded complaint rule nor admiralty jurisdiction serve as bars to removal. Similarly, the Eleventh Amendment is not a bar to removal in this matter.In re Oil Spill by the Oil Rig "Deepwater Horizon,"No. 10-CV-1156, 40 ELR 20267 (E.D. La. Oct. 6, 2010) (Barbier, J.).

NATURAL RESOURCE DAMAGES, WAIVER:

A district court held that the state of New Jersey waived its right to pursue natural resource damages in its lawsuit against a company concerning groundwater contamination on property located in Franklin Township, New Jersey. The state issued a memorandum in 2001 and wrote a letter in 2003 stating that the company would not be responsible for natural resource damages. In 2004, the Deputy Attorney General learned that the state altered its policy on the assessment of natural resource damages following an administration change in 2002 and that the state would seek natural resource damages for the contamination. So in 2006, the state filed suit against the company and others, seeking precisely the kind of damages that the memo and letter had represented the state would not pursue. The state's written representations that it would not assess natural resource damages on the site amounted to an express waiver of the state's right to seek said damages. The state's argument that a government agency may change its position after waiving its right to damages is unavailing. The state failed to cite any cases where a government agency has expressly waived a right, in writing, and was then permitted to renege on that representation.FMC Corp. v. American Cyanamid, No. 01-0476, 40 ELR 20268 (D.N.J. Sept. 29, 2010) (Cavanaugh, J.).

Copyright© 2010, Environmental Law Institute, Washington, D.C. All rights reserved.

THE FEDERAL AGENCIES

Note: Citations below are to theFederal Register(FR).

AIR:

  • EPA and the National Highway Traffic Safety Administration announced joint rulemaking to implement a presidential memorandum to improve fuel efficiency and to reduce greenhouse gas emissions of light-duty vehicles for model years 2017-2025.75 FR 62739(10/13/10).
  • EPA proposed new source performance standards and emission guidelines under the CAA for sewage sludge incineration units.75 FR 63260(10/14/10).
  • SIP Approval:Tennessee (attainment of the 1997 eight-hour ozone NAAQS for the Knoxville nonattainment area)75 FR 62470(10/12/10).

ENERGY:

  • DOE proposed rulemaking to reduce the consumption of fossil fuel-generated energy in the construction and renovation of federal buildings.75 FR 63404(10/15/10).
  • The Bureau of Ocean Energy Management, Regulation, and Enforcement promulgated regulations to require operators to develop and implement safety and environmental management systems for oil and gas and sulphur operations in the outer continental shelf.75 FR 63610(10/15/10).
  • The Bureau of Ocean Energy Management, Regulation, and Enforcement implemented certain drilling regulations as recommended in the report entitled, "Increased Safety Measures for Energy Development on the Outer Continental Shelf."75 FR 63346(10/14/10).

HAZARDOUS & SOLID WASTE:

  • EPA extended the date for certain facilities to comply with the preparation, amendment, and implementation of their spill prevention, control, and countermeasure plans to November 10, 2011.75 FR 63093(10/14/10).

WILDLIFE:

  • FWS and the Forest Service amended the regulations that manage the taking of wildlife and fish in Alaska for subsistence purposes.75 FR 63088(10/14/10).

DOJ NOTICES OF SETTLEMENT:

  • United States v. Doe Run Resources Corp., No. 4:10-cv-1895 (E.D. Mo. Oct. 8, 2010). A settling defendant responsible for CAA, CERCLA, CWA, EPCRA, and RCRA violations at several mining, milling, and smelting facilities in Missouri must pay a $3.5 million civil penalty to the United States and a $3.5 million civil penalty to Missouri, plus interest; must establish financial assurance trust funds for the cleanup of certain facilities; must address RCRA violations at certain facilities; must finalize and comply with CWA permits at 10 facilities; must spend an estimated $5.8 million on stream mitigation activities; must enclose lead concentrate handling, loading, and storage areas; and must spend $2 million on community mitigation projects over the next four years.75 FR 63506(10/15/10).
  • United States v. CalPortland Co., No. 4:10-CV-00573-DCB (D. Ariz. Sept. 23, 2010). A settling CAA defendant responsible for violations at its cement manufacturing plant in Rillito, Arizona, must pay a $350,000 civil penalty, must perform injunctive relief, and must perform one of two compliance options at the facility.75 FR 63202(10/14/10).
  • In re Chemtura Corp., No. 09-11233 (Bankr. S.D.N.Y. Sept. 30, 2010). A settling CERCLA defendant responsible for violations at the Gowanus Canal Superfund site in Brooklyn, New York, must provide an allowed general unsecured claim of $3,900,000 for U.S. response costs incurred at the site.75 FR 62857(10/13/10).
  • United States v. Mueller Industries, Inc., No. 2:10-cv-00981-BCW (D. Utah Oct. 5, 2010). A settling CERCLA defendant responsible for violations at the Eureka Mills Superfund site in Eureka, Utah, must pay $2,250,000 in U.S. response costs incurred at the site and $250,000 to the state of Utah.75 FR 62858(10/13/10).
  • United States v. BP Products North America Inc., No. 4:10-cv-3569 (S.D. Tex. Sept. 30, 2010). A settling CAA defendant responsible for a leak and reporting violations at a petroleum refinery in Texas City, Texas, must pay a $15 million civil penalty and must regularly report to EPA on indicators of process safety at the refinery.75 FR 62567(10/12/10).
  • United States v. Sunoco, Inc., No. 05-6336 (E.D. Pa. Oct. 5, 2010). Settling defendants responsible for environmental contamination at the former Defense Supply Center Philadelphia property in Philadelphia, Pennsylvania, must pay $10 million in U.S. response costs incurred at the property.75 FR 62567(10/12/10).
  • United States v. C.A.I., Inc., No. 1:10-cv-10390-GAO (D. Mass. Sept. 30, 2010). A settling CAA and CERCLA defendant responsible for violations at the Danversport Superfund site in Danvers, Massachusetts, must pay a $3,750 civil penalty and must pay $11,250 in U.S. response costs incurred at the site.75 FR 62568(10/12/10).

Copyright© 2010, Environmental Law Institute, Washington, D.C. All rights reserved.

THE CONGRESS

Congress is currently in recess but will reconvene November 15, 2010.

Copyright© 2010, Environmental Law Institute, Washington, D.C. All rights reserved.

IN THE STATES

Note: The entries below cover state developments since the last issue of Update. The entries are arranged by state, and within each section, entries are further subdivided by subject matter area. To access material previously reported in 2010, visit our list ofCumulative State Developments. For state material reported prior to 2010, visit theELR Archives.

The states below have updates this week:

CaliforniaColoradoFloridaIndianaMaineMarylandMontanaOhioVirginia

CALIFORNIA

Toxic Substances:

  • The Office of Environmental Health Hazard added 1,3-dichloro-2-propanol, 3-monochloropropane-1,2-diol, and Spirodiclofen to the list of chemicals known to the state to cause cancer or reproductive toxicity. Seehttp://www.oal.ca.gov/res/docs/pdf/notice/41z-2010.pdf(pp. 1642-61).

COLORADO

Air:

Hazardous & Solid Waste:

Water:

FLORIDA

Air:

  • The Department of Environmental Protection proposed to amend Fl. Admin. Code Ann. r. 62-204.800, Federal Regulations Adopted by Reference. The proposed rules would establish compliance deadlines for hospital/medical/infectious waste incinerator units subject to revised EPA regulations, and procedures by which individual units may request compliance deadline extensions. The proposed rule amendments would also establish a requirement for a metals emissions test at the time of each particulate matter emissions test. Seehttps://www.flrules.org/gateway/ruleNo.asp?id=62-204.800.

INDIANA

Air:

  • The Air Pollution Control Board proposed to add 326 Ind. Admin. Code §4.3, establishing regulations for outdoor hydronic heaters. The rule includes a maximum stack height of 22 feet. The comment period, which was extended after a large influx of comments in the previous period and subsequent revisions to the legislation, ends November 3, 2010. Seehttp://www.in.gov/legislative/iac/20101013-IR-326050332PRA.xml.pdf.

MAINE

Air:

  • The Department of Environmental Protection proposed an amendment to Ch. 118, Gasoline Dispensing Facilities Vapor Control. Changes would repeal the January 2012 Stage II requirements for vapor controls and implement new controls to compensate for increased volatile organic compound emissions. The chapter would require the Department to install and test pressure/vacuum vent caps on gasoline dispensing facilities by January 1, 2012, as one of the measures used to address this requirement. The measure would address the increase in volatile organic compound emissions resulting from the removal of Stage II requirements, but would not fully compensate for the removal of the original requirements. There will be a public hearing on November 4, 2010, and the deadline for comments is November 15. Seehttp://www.maine.gov/sos/cec/rules/notices/2010/101310.html.
  • The Department of Environmental Protection proposed to amend Ch. 129, Surface Coating Facilities, to expand the list of sources of volatile organic compounds regulated to include exterior siding and tileboard. The amendments lower the threshold above which sources are subject to the rule to 15 pounds per day of volatile organic compounds (from 10 tons per year). Emission limits for metal furniture and flatwood paneling coating operations are more stringent, in some cases, than current limits. The comment period ends November 12, 2010. Seehttp://www.maine.gov/sos/cec/rules/notices/2010/101310.html.

Land Use:

  • The Department of Environmental Protection proposed to amend Ch. 305, Permit-By-Rule Standards. Changes would allow several new activities in coastal sand dunes, such as open and cobble-trapping fences, and other activities in existing developed areas. The comment period ends November 12, 2010. Seehttp://www.maine.gov/sos/cec/rules/notices/2010/101310.html.

MARYLAND

Hazardous & Solid Waste:

MONTANA

Land Use:

  • The Department of Environmental Quality amended Mont. Admin. R.17.55.102, 17.55.108, 17.55.111, and 17.55.114. Changes would alter the definitions, facility listing, facility ranking, and set out procedures for delisting a facility on the Comprehensive Environmental Cleanup and Responsibility Act priority list. Seehttp://sos.mt.gov/arm/Register/archives/MAR2010/MAR10-19.pdf(pp. 2346-77).

OHIO

Water:

VIRGINIA

Wildlife:

Copyright© 2010, Environmental Law Institute, Washington, D.C. All rights reserved.

INTERNATIONAL

NINE CHARGED IN PROBE OF E-WASTE DUMPING

As a part of what the United Kingdom's Environment Agency is calling the largest investigation to date of illegal electronic waste transport from the UK to West Africa, nine people have been charged under the Transfrontier Shipment of Waste Regulations 2007 and European Waste Shipment Regulations 2006. The individuals were charged with illegally dumping old phones, televisions, and computers in Ghana and Nigeria. "Exporters of broken electricals put at risk the lives of those who work on waste sites in developing countries," said Andy Higham, the Agency's National Environmental Crime Team manager. The team is currently conducting 18 investigations of illegal export of waste, half of which are related to electronics. "These are often children who are paid a pittance to dismantle products containing hazardous waste. Illegal exporters also avoid the costs of recycling in the UK and undermine law-abiding business." The investigations are part of an increased effort in the UK to prevent the export of hazardous waste to developing countries. Since the Waste Electrical and Electronic Equipment Directive came into effect in 2007, the Environment Agency has cracked down on e-waste, securing its first successful prosecution earlier this year. Agency chairman Chris Smith gave a speech in September calling for international cooperation to fight the "toxic trade" of e-waste shipped to Africa, and in June a city council in southern Britain was fined for poor recycling of electronic goods. The nine charged face up to two years in prison and fines. For the full story on the recent prosecution, seehttp://www.businessgreen.com/business-green/news/2271191/nine-charged-exporting-illegal. For the first successful e-waste prosecution in Europe, seehttp://localgovernmentlawyer.co.uk/index.php?option=com_content&view=article&id=3840%3Aenvironment-agency-secures-first-uk-prosecution-over-electrical-waste&catid=56%3Alitigation-articles&q=&Itemid=24.

CHINA ATTEMPTS TO REDUCE WATER POLLUTION

As cities across China struggle with the remnants of decades of rapid economic growth, black rivers, and thick blankets of haze, the country and provinces are implementing new measures to fight the region's endemic water pollution. As Guangzhou has prepared to host the Asian Games, it's spent $7.3 billion on fighting water pollution to battle its image as the most polluted city in the country. The money has gone largely to the construction of 30 new sewage treatment plants, and the water quality of 121 rivers and streams has improved, according to the municipal government. The local water is currently so polluted that fish and shrimp caught in it are inedible. East of Shanghai, China is implementing a new process involving ozone gas microbubbles to clean Lake Taihu, an extremely polluted body of water that's filled with the runoff from industrial sites in the nearby city of Wuxi. In September, Beijing released a draft of what is likely the first law of its kind in China, allowing government institutions and organizations to assist victims in collecting evidence against water polluters in civil lawsuits, in an effort to remove barriers to individuals and environmental groups. If passed, the city will be the first administrative area in mainland China to have a law mentioning government assistance in civil suits against polluters. An editorial inEnvironmental Expertwarned of serious potential consequences for neglecting water quality and security for a nation so concerned with growth and development, citing recent droughts and dwindling groundwater supplies. For Guangzhou's efforts, seehttp://english.yonhapnews.co.kr/national/2010/10/14/72/0302000000AEN20101014004400320F.HTML. For Lake Taihu remediation, seehttp://news.discovery.com/tech/scrubbing-micro-bubbles-clean-polluted-lake.html. For Beijing's possible new law, seehttp://www.globaltimes.cn/www/english/metro-beijing/update/society/2010-09/577259.html. For theEnvironmental Experteditorial, seehttp://www.environmental-expert.com/resultEachPressRelease.aspx?cid=35120&codi=200756&lr=1.

EU CALLS FOR GLOBAL ACTION ON BIODIVERSITY; DECLINES TO OFFER FUNDS IN JAPAN

Days after an assessment confirmed that the European Union missed 2010 biodiversity targets, a minister confirmed that Europe will scale back efforts to halt global biodiversity loss. "We have the economic situation, so we decided that we are not really able to put new money on the table in Nagoya," said Flemish Minister for Environment Joke Schauvliege ahead of biodiversity talks in Nagoya, Japan, this week. EU ministers affirmed the Union's commitment to extending the Kyoto Protocol and to meeting 2020 biodiversity targets, but said that member states would not provide money to new countries at the moment. EU ministers present at the talks in Nagoya indicated that extending aid to area countries was a lower priority at the moment than issues like preparing for upcoming talks in Cancun. However, in a press release responding to news that the EU had already missed this year's biodiversity loss targets, EU Environment Commissioner Janez Potocnik said "we need everyone on board and not just in Europe. The threat around the world is even greater than in the EU." UPI reported that a 2008 study found that 50 percent of the species and up to 80 percent of the habitats in the European community are threatened, and that the losses cost member states about $65 billion each year but could rise to $18 trillion by 2050. For the full story on talks in Nagoya, seehttp://euobserver.com/9/31049. For the UPI story, seehttp://www.upi.com/Science_News/Resource-Wars/2010/10/15/EU-skittish-ahead-of-biodiversity-summit/UPI-79021287145648/. For the European Commission's press release, which contains a number of statistics on biodiversity loss in Europe, seehttp://europa.eu/rapid/pressReleasesAction.do?reference=IP/10/1303&format=HTML&aged=0&language=EN&guiLanguage=en.

Copyright© 2010, Environmental Law Institute, Washington, D.C. All rights reserved.

Note: To request additional information, please call (800) 433-5120 or (202) 939-3844. Documents may also be available free or at a nominal charge from the applicable court or agency. Copyright© 2010, Environmental Law Institute, Washington, D.C. All rights reserved.

ELR STAFF

Leslie Carothers, Publisher
Scott Schang, Editor-in-Chief
Rachel Jean-Baptiste, Managing Editor
Erin Webreck, Associate Editor
William J. Straub, Desktop Publisher
Clare Shepherd, Web Editor