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News
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July 2, 2010: EPA Issues Interim Guidance on Clean Air Act Compliance Inspections
EPA issued interim guidance on involving facility employees and employee representatives during EPA inspections to comply with CAA’s statutory requirements.
The Clean Air Act, § 112(r)(6)(L) (42 U.S.C. § 7412(r)(6)(L)), provides that, during EPA compliance inspections, “employees and their representatives shall have the same rights to participate in such inspections as provided in the Occupational Safety and Health Act.” The new interim guidance requires EPA staff to “offer facility employees and employee representatives the opportunity to participate in any such evaluations,” consistent with regulations governing OSHA inspection practice. Those regulations, in particular 29 C.F.R. § 1903.8, say: “A representative of the employer and a representative authorized by his employees shall be given an opportunity to accompany the [OSHA inspector] during the physical inspection of any workplace for the purpose of aiding such inspection” (emphasis added).
For more information, please contact David E. Romine at dromine@langsamstevens.com.
April 12, 2010: Third Circuit Superfund decision addresses PRPs’ rights to bring §107 actions, pro rata v. pro tanto apportionment and limitations issues
In Agere Systems, Inc. v. Advanced Envtl. Tech. Corp., __ F.3d __, 2010 U.S. App. LEXIS 7462 (3d Cir. April 12, 2010), the court held that signatories to a Consent Decree have a § 113 action, but not a §107 action, against other PRPs, among other things.
Facts
In 2000, EPA signed a Consent Decree with three PRPs (Cytec, Ford, and SPS) relating to work at the Boarhead Farms Superfund Site in Bucks County, Pennsylvania. In 2002, the original three signatories and a fourth, T1, signed another Consent Decree for additional work. The four PRPs later agreed with a fifth, Agere, to share work contemplated by the second consent decree, but Agere signed neither Consent Decree.
All five PRPs sued twenty-three other PRPs at the site, but by the time of trial, only one defendant, Carpenter, had not settled or been dismissed.
§113 for some plaintiffs, §107 for others
Carpenter did not dispute that the three original signatories had a §113 contribution action against it, but argued that T1 (as to the first Consent Decree work) and Agere had no cause of action against it whatsoever. A §113 action is only available to a PRP "during or following" a suit against it, which the Consent Decrees were. What about T1 and Agere? The court held that it would be unfair, having spent money to clean up the site, for them to have no cause of action against unsettled parties like Carpenter, even though the predicate suit was lacking. So the court held that they had a §107 action. This addressed the issue of sections 113 and 107 being "overlapping remedies," as described in United States v. Atl. Research Corp., 551 U.S. 128, 139 n.6 (2007); at least under the facts of this case, the Third Circuit said they are not.
UCFA is OK
The District Court calculated Carpenter's equitable share in part by subtracting the settling defendants' volumetric shares from the total waste volume at the site, instead of subtracting the settling defendants' payments from total site costs. This approach, known as "pro rata," is consistent with the Uniform Comparative Fault Act (U.C.F.A.). It was challenged by Carpenter, but the Third Circuit held that "there was nothing wrong with its choosing to use volume, rather than the dollar value of the settlements, as the basis for allocating liability among parties." Although not mentioned by the Court in Agere, using dollar values of settlements, known as the "pro tanto" or U.C.A.T.A. (Uniform Contribution Among Tortfeasors Act) approach, has been approved by the Third Circuit in other circumstances. See Action Manufacturing Co. v. Simon Wrecking Co., 287 Fed. Appx. 181 (3d Cir. 2008).
Limitations: Fact Intensive Again!
Carpenter also argued that the contribution Plaintiffs had blown the limitations period by filing their case on December 6, 2001, more than three years after completion of the EPA's removal action on November 18, 1998. This would run afoul of §113(g)(2)(A), which requires that contribution suits be brought within three years of a removal action. The District Court said that the removal action had been completed "at the earliest, on November 19, 1998," but also said that it was "likely" that the removal action was still ongoing as of September 28, 2000. The Third Circuit remanded for a definite determination of the date the removal action was completed, so that §113(g)(2)(A) could be used to answer the limitations question.
For more information, please contact David E. Romine at dromine@langsamstevens.com.
January 6, 2010: National Priorities for Enforcement and Compliance Assurance (FY 2011-2013) & EPA Identifies Additional Classes of Industries for Financial Assurance Obligations Under CERCLA 108(b)
On Monday (1/4), EPA announced its proposed enforcement priorities for FY 2011-2013 (75 Fed. Reg. 140). These priorities play a key role in EPA's environmental enforcement activities. EPA is accepting comments until January 19, 2010. Some of the priorities include RCRA corrective action program enforcement, RCRA corrective action financial assurance (See infra Press Release regarding CERCLA 108(b)), energy/mining resource extraction, mining processing, air toxics and environmental justice.
Continuing with the environmental financial assurance theme is today’s Federal Register notice (75 Fed. Reg. 815) and EPA’s 12/30/09 Press Release under CERCLA 108(b) identifying additional classes of industries for development of financial obligation regulations in cleanup of environmental releases. The three industries identified in EPA’s Press Release and today’s notice are the chemical manufacturing industry (NAICS 325), the petroleum and coal products manufacturing industry (NAICS 324), and the electric power generation, transmission, and distribution industry (NAICS 2211). The notice states that EPA plans to develop a proposed regulation identifying appropriate financial responsibility requirements under CERCLA 108(b). Comments on this notice must be received on or before 2/5/10.
For more information please contact Stephen E. Fitzgerald at 215-732-3255.
September 25, 2009: Chlorine Gas Shipping Rates Are Trade Secrets Says Texas Supreme Court
The Texas Supreme Court has held that a railroad’s hazardous materials’ shipping rates are trade secrets. In re Union Pac. R.R. Co., No. 08-0740, 2009 Tex. LEXIS 725 (Sept. 25, 2009). Because the plaintiff had not shown “why she needs the specific rate structures” to make her argument, the high court vacated the trial court’s deposition order. Plaintiff was attempting to utilize the information in her argument that Union Pacific knew it had a higher duty when dealing with hazardous materials, but disregarded it. The high court said, “a party . . . must demonstrate with specificity exactly how the lack of the information will impair the presentation of the case on the merits to the point that an unjust result is a real, rather than a merely possible, threat.”
This toxic tort case resulted from the 2004 collision, derailment and fire of a Union Pacific train transporting chlorine gas in Bexar County, Texas. Plaintiffs claim that the chlorine gas car should have been located at the rear of the train away from steel cars. Defendants testified that hazardous materials would not be treated differently except that they could not be placed within five cars of the engine.
Texas has adopted the Restatement of Torts § 757 to use in determining whether a trade secret exists. The Restatement factors are: (1) the extent to which the information is known outside of the business; (2) the extent to which it is known by employees and others involved in the business; (3) the extent of measures taken to guard the secrecy of the information; (4) the value of the information to the business and to its competitors; (5) the amount of effort or money expended in developing the information; and (6) the ease or difficulty with which the information could be properly acquired or duplicated by others.
The opinion issued per curiam.
For more information, please contact Stephen Fitzgerald at sfitzgerald@langsamstevens.com.
September 17, 2009: Another Victory for Vinyl Chloride Producers’ Sophisticated User Defense—West Virginia
The United States District Court for the Southern District of West Virginia held in a recent decision that a supplier of vinyl chloride to make polyvinyl chloride may argue under West Virginia law that it had no duty to warn of the chemical's toxicity because the worker's employers were sophisticated users. Roney v. Gencorp, et al., No. 3:05-0788, 2009 U.S. Dist. LEXIS 80849 (S.D.W. Va. Sept. 4, 2009). The Court found that West Virginia would allow an application of the sophisticated user defense even though neither the West Virginia Supreme Court of Appeals nor the U.S. Court of Appeals for the Fourth Circuit had explicitly adopted the theory.
In Roney v. Gencorp, Roney’s family alleged that Roney's exposure to vinyl chloride vapors while working at a West Virginia plant from 1965 until 1982 caused him to contract angiosarcoma—,a form of liver cancer, that killed him in 2003.
Plaintiffs alleged the chemical producers failed to warn plant workers about vinyl chloride’s toxicity and conspired with the plant's owners to misrepresent the vinyl chloride’s safety. In defense, the chemical producers successfully argued they should be able to argue under West Virginia law that because the plant’s owners knew as much about the dangers of vinyl chloride exposure as the producers did, they were sophisticated users of the chemical and the producers did not have a duty to directly warn workers the hazards of working around vinyl chloride. The producers also successfully argued the bulk supplier defense applied because they provided vinyl chloride in bulk to the plant and had no easy way of providing warnings to Roney and that the plant, not the producers, had the burden to provide the warnings.
This is another victory for the sophisticated user defense in vinyl chloride exposure litigation. In August, the United States Court of Appeals for the First Circuit in Taylor v. The American Chemistry Council, et al., 576 F.3d 16 (1st Cir. 2009) held that the sophisticated user defense under Massachusetts law relieved several suppliers of vinyl chloride of a duty to warn a former polyvinyl chloride plant worker in Massachusetts.
For more information, please contact Stephen Fitzgerald at sfitzgerald@langsamstevens.com.
July 24, 2009: Township Can’t Apply Post-Filing Zoning Law to an Application in Furtherance of Pending Subdivision Plan
Developer’s change in proposed sewage treatment for planned subdivision is subject to zoning law in effect at the time the plan for the subdivision was filed, Commonwealth Court says.
In 2001, developer Heritage Building Group filed a preliminary subdivision and land development plan, but waived its right to have to the Township make a decision on the plan within 90 days. Apparently, the Township has never acted on the Plan.
The same year, the Township changed its zoning ordinance to mandate that no property may be altered, graded, disturbed or cleared of trees without a zoning permit. The Township’s earlier (1991) zoning ordinance had no such provision.
Meanwhile, Heritage applied for zoning variances that would allow it to build a centralized sewage system for the development because the soil is not suitable for on-lot systems. The Township’s Zoning Hearing Board denied the applications twice.
Changing tactics in 2007, Heritage decided to place fill on the lots which, after four years, would render them suitable for on-lot systems. It applied for a zoning permit to do so. The Township zoning officer denied the application on the ground that the fill permit could only be granted if Heritage demonstrated compliance with other zoning requirements; it had not, so the officer denied the permit. The ZHB affirmed.
The Court of Common Pleas reversed, holding that the Township could not hold apply the 2001 zoning ordinance to an application made in furtherance of a subdivision plan that was filed before the ordinance went into effect.
The Commonwealth Court affirmed, relying on Section 508(4)(i) of the Municipalities Planning Code, 53 P.S. §10508(4)(i), which provides:
“From the time an application for approval of a plat, whether preliminary or final, is duly filed as provided in the subdivision and land ordinance, and while such application is pending approval or disapproval, no change or amendment of the zoning, subdivision or other governing ordinance or plan shall affect the decision on such application adversely to the applicant and the applicant shall be entitled to a decision in accordance with the provisions of the governing ordinances or plans as they stood at the time the application was duly filed” (emphasis added)
In re Appeal of Heritage Bldg. Group, Inc., 2009 Pa. Commw. LEXIS 761 (Pa. Commw. Ct. July 24, 2009).
July 23, 2009: “More Stringent” Does Not Mean “Broader In Scope” for RCRA Enforcement, Rhode Island Court Says
The federal District Court denied the defendant’s motion for acquittal on charges that it illegally stored mercury without a permit, even though the amount stored was less than would have been actionable under federal regulations.
Defendant Southern Union Co. was found guilty by a jury of storing hazardous waste without a permit in violation of 42 U.S.C. § 6928(d)(2), part of RCRA (the federal Resource Conservation and Recovery Act). Although the opinion does not specify how much hazardous waste it stored (in this case, mercury), apparently all sides agreed the amount was less than 1,000 kilograms. This made the defendant a “Small Quantity Generator,” and therefore eligible for a conditional exemption from permitting requirements, the “conditional exemption for small quantity generators” or “CESQG.”
But U.S. EPA had given Rhode Island the authorization to administer its own hazardous waste management program. A state may do so under RCRA if the regulations under its state program are “equivalent to” and “consistent with” RCRA regulations, and even if they are “more stringent.” A state may not, however, impose regulations that are “broader in scope” than RCRA regulations under an EPA-authorized program.
,br>Rhode Island’s program did not recognize any CESQG. In other words, in Rhode Island, all hazardous waste storage requires a permit. And when EPA approved Rhode Island’s program, it noted that Rhode Island’s rules – because they were approved by EPA under RCRA – are “federally enforceable.”
After it was found guilty by the jury for illegal storage (but acquitted by the same jury on two other counts of the indictment), defendant moved for acquittal. It argued that Rhode Island’s regulations were “broader in scope” than RCRA’s regs because the state’s regulations covered all hazardous waste generators, not just large quantity generators. As such, the regs could not have been properly authorized by EPA and were not enforceable.
,br>The District Court denied the motion. In classic deference-to-agency language, it held that “EPA has the inherent authority --subject of course to the APA -- to make determinations as to whether a state program submitted to the EPA for approval is more stringent, or seeks to regulate in areas that are beyond the federal program’s scope of coverage.”
This is true even though EPA apparently determined that California’s and the District of Columbia’s similar treatment of small quantity generators amounted to regulation that was “broader in scope” than RCRA, and therefore not permitted. The District Court described EPA’s actions with respect to the various states as a policy that evolved over time, although “in a less than perfectly seamless fashion,” and not fatally arbitrary.
The lesson to be learned from this decision is that EPA’s approval of state regulations under RCRA will likely not be overturned by a court – even if the line between “more stringent” and “broader in scope” is not so easily drawn.
U.S. v. Southern Union Co., 2009 U.S. Dist. LEXIS 63619 (D.R.I. July 23, 2009), also available at http://www.rid.uscourts.gov/opinions/smith/07222009_1-07CR0134S_USA_V_SOUTHERN_UNION_COMPANY_P.pdf.
July 22, 2009: Pennsylvania Supreme Court Upholds Rail-Trail Easements
Pennsylvania’s Supreme Court upheld the validity of a railroad’s easement after it was conveyed to a land conservancy.
In 1992, Conrail conveyed a right-of-way for an abandoned line to a land trust. The land trust “railbanked” the right-of-way, meaning that it could be converted back to railway use under the provisions of the federal National Trails System Act (16 U.S.C. § 1247(d)).
In 1995, owners of servient tenements, i.e., land through which the right-of-way passed, sued the land trust and others, alleging that the easement was no longer in effect because it had been abandoned by Conrail. The factual basis for their claim was that Conrail had not agreed to resume rail service if ordered to do so by the Surface Transportation Board.
The Court of Common Pleas of Armstrong County agreed, holding the easement had been abandoned. The Superior Court reversed in 2007, and the Supreme Court affirmed the Superior Court. The Court held that Conrail had sold the right-of-way to the land trust, not abandoned it; and that the parties had otherwise complied with the National Trails System Act, meaning the easement is still valid.
For more information, contact Dave Romine at dromine@langsamstevens.com or at 215-732-3255.
July 2, 2009: Commonwealth Court Limits Exceptions to Rollback Taxes Under “Clean and Green” Act
Pennsylvania’s Commonwealth Court limited exceptions to the imposition of rollback taxes for split-off land under the “Clean and Green” Act, ruling in favor of York County’s Board of Assessment Appeals.
In Donnelly v. York County Bd. of Assessment Appeals, No. 1015 C.D. 2008 (Pa. Commw. Ct. July 2, 2009), landowners owned about 33 acres of land in York County that had been granted a preferential assessment under Pennsylvania’s Farmland and Forest Land Assessment Act of 1974, the “Clean and Green” Act. The Act provides for preferential assessments – lower taxes – for qualifying agricultural and forested properties.
In October 2006, the landowners conveyed two acres of the property to their daughter, who lives in a house on the two acres (the opinion does not say when the house was built). Less than a month later, the county assessor notified the landowners and their daughter that the two acre parcel was not eligible for the preferential assessment. The assessor imposed seven years of “roll-back” taxes in accordance with the Act on both parcels (the two acres split-off and the remainder). The landowners and their daughter appealed. The court of common pleas affirmed, and the landowners appealed again to the Commonwealth Court.
The Commonwealth Court affirmed. The Court said that the facts were not in dispute and that the case turned on statutory construction of the Act, and in particular the exceptions to imposition of the rollback tax. 72 P.S. §5490.6(a.1) (Section 6(a.1) of the Act) provides:(1) The split-off of a part of land which is subject to preferential assessment under this act shall subject the land so split off and the entire tract from which the land was split off to roll-back taxes as set forth in section 5.1. The landowner changing the use of the land to one inconsistent with this act shall be liable for payment of roll-back taxes. The landowner of land which continues to be eligible for preferential assessment shall not be liable for any roll-back taxes triggered as a result of a change to an ineligible use by the owner of the split-off tract. Roll-back taxes under section 5.1 shall not be due if one of the following provisions applies:
(i) The tract split off does not exceed two acres annually, except that a maximum of the minimum residential lot size requirement annually may be split off if the property is situated in a local government unit which requires a minimum residential lot size of two to three acres; the tract split off is used only for agricultural use, agricultural reserve or forest reserve or for the construction of a residential dwelling to be occupied by the person to whom the land is conveyed; and the total tract or tracts so split off do not exceed the lesser of ten acres or ten percent (10%) of the entire tract subject to preferential assessment.
(ii) The split-off occurs through a condemnation.
(2) Each tract which has been split off under paragraph (1)(i) shall be subject to roll-back taxes for such a period of time as provided in section 5.1. The landowner changing the use of the land shall be liable for payment of roll-back taxes. The landowners argued that they met the three criteria for the exception to imposition of rollback taxes in Section 6(a.1)(1)(i): the split off was not more than two acres; it was used for a residential dwelling for the “person to whom the land is conveyed” (the daughter); and it was not more than 10% of the approximately 33 acre parcel. And the Commonwealth Court agreed as a factual matter that the split-off satisfied these three criteria.
So why were the roll-back taxes proper? The Commonwealth Court employed the principle of statutory construction that “a proviso is deemed to apply only to the immediate preceding clause or provision.” It reasoned that the “proviso” that spelled out the three requirements for the exception, beginning with “Roll-back taxes under section 5.1 shall not be due …” applies only to the preceding sentence: “The landowner of land which continues to be eligible for preferential assessment shall not be liable for any roll-back taxes triggered as a result of a change to an ineligible use by the owner of the split-off tract.” And that preceding sentence talks only about the “landowner of land which continues to be eligible for preferential assessment,” not the owner of the split-off; so only the owner of the remainder, and not the owner of the split-off, is eligible for the exception in Section 6(a.1)(1)(i).
In addition, said the Court, Section 6(a.1)(2) says that “Each tract which has been split off under paragraph (1)(i) shall be subject to rollback taxes …” (emphasis added).
Finally, the Court said its result was required by Close v. Berks County Bd. of Assessment Appeals, 839 A.2d 462 (Pa. Commw. Ct. 2003). In Close, the Court, in a similar situation, imposed taxes on the split-off parcel, but not on the main parcel: “Taxpayers’ remaining 42-plus-acre tract of land remains entitled to the preferential assessment under the Act.” Close, 839 A.2d at 467.
The Donnelly opinion is a good job by the Commonwealth Court of interpreting what may be the most nonsensical statutory language I have ever read. Section 6(a.1)(1)(i) sets forth criteria under which roll-back taxes “shall not be due,” creating an exemption; then Section 6(a.1)(2) says that “Each tract which has been split off under paragraph (1)(i) shall be subject to rollback taxes …”.
The Court’s solution is to hold that the exemption created by Section 6(a.1)(1)(i) applies only to owners of a remainder tract that continues to be preference-eligible – even though those owners are already excluded from roll-backs by the preceding sentence.
The Court’s citation to Close is necessary – it is a published opinion by the same court on precisely the same issue – but imperfect, and rightly so. In Close, the Court held that the owners of the remainder parcel were liable for the roll-back tax, which the Donnelly opinion says is forbidden. Although the more recent Donnelly opinion does not disclose its departure from Close in this respect, I believe it is correct given the following language in Section 6(a.1)(1): “The landowner of land which continues to be eligible for preferential assessment shall not be liable for any roll-back taxes …”.
Sorting out the confusing language of Section 6(a.1) may require the Supreme Court to take a case. Apparently no petition for allowance of appeal was filed in Donnelly.
The Donnelly opinion is unreported. It is available on the Commonwealth Court’s website at http://www.pacourts.us/OpPosting/Cwealth/out/1015CD08_7-2-09.pdf.
For more information contact David Romine at dromine@langsamstevens.com or (215) 732-3255.
June 29, 2009: Pennsylvania DEP Releases Climate Change Report
Pennsylvania’s Department of Environmental Protection released its “Pennsylvania Climate Impact Assessment” on June 29. The 350-page document assesses the likely effects of climate change on everything in Pennsylvania from weather to environmental effects to human health, insurance and even tourism.
The Assessment predicts that Pennsylvania’s climate will be warmer by the end of this century, no matter what happens to global greenhouse gas emissions in the meantime. It also predicts more precipitation. Curiously, it also predicts more droughts because of longer dry periods and more intense storms. When the water comes, it will come all at once.
Among the predicted effects are: loss of tree species adapted to a cooler climate; loss of aquatic biodiversity; higher electricity use due to air conditioning; increased ground level ozone, leading to respiratory problems; less skiing and snowmobiling, but more swimming and boating; and possible problems for property and casualty insurers, but less severe problems than in states more prone to hurricane and flood damage.
For more information, view the Assessment at http://www.elibrary.dep.state.pa.us/dsweb/Get/Document-75375/7000-BK-DEP4252.pdf, or contact Dave Romine at dromine@langsamstevens.com or at 215-732-3255.
June 26, 2009: House Passes Waxman-Markey 219-212
By a close vote of 219-212, the U.S. House of Representatives passes the American Clean Energy and Security Act (ACES), also known by the name of its main sponsors, the Waxman-Markey Bill. It now goes to the Senate. The ACES Act is Congress’s first major effort to address regulation of greenhouse gasses and global warming.
The ACES Act is ambitious: it seeks to reduce emissions of seven greenhouse gasses (GHGs), including carbon dioxide, 83% below 2005 levels by 2050. It does this by issuing emissions allowances to producers of GHGs and allows the producers to trade the allowances. The idea is to inject market economics into regulation. This is often called “cap and trade,” and is the heart of the Regional Greenhouse Gas Initiative (RGGI) in place in some of the northeastern states (see News item dated Jan. 26, 2009). The Federal Energy Regulatory Commission would oversee the carbon market.
The bill would also allow offsets, meaning a producer of GHG could get more allowances through “emissions compliance,” to be determined by EPA.
The RGGI and two similar programs in the western U.S. would be put on hold at least until 2017.
For more information, contact Dave Romine at dromine@langsamstevens.com or at 215-732-3255.
May 4, 2009: Supreme Court addresses arranger liability, apportionment under CERCLA
The Supreme Court limited arranger liability and expanded a district court’s ability to apportion damages under CERCLA in Burlington N. & Santa Fe Ry. v. United States, 129 S. Ct. 1870 (May 4, 2009).
This case involved a California wholesale pesticide distributor (B&B) that operated from 1960 through 1989. B&B bought chemicals from (among others) Shell Oil Company (Shell). For a portion of the time, B&B operated on land owned by two railroads. In 1991, EPA issued an administrative order to the railroads to clean up some of the site, and the railroads did so. The railroads’ contribution case against B&B was consolidated with a later case brought by EPA against the railroads and Shell.
The facts showed that Shell knew that B&B was “sloppy” and that it spilled its chemicals from time to time, including those that Shell sold. The question was, did this knowledge make Shell liable as an “arranger” under Section 107(a) of CERCLA.
The Supreme Court held that Shell was not liable. According to the Court (Stevens, J.), “an entity may qualify as an arranger under §9607(a)(3) when it takes intentional steps to dispose of a hazardous substance.” Slip op. at 11 (emphasis added). Knowledge that spills occurred and might occur in the future does not imply intent that the pesticide be disposed, “particularly when the disposal occurs as a peripheral result of the legitimate sale of an unused, useful product. In order to qualify as an arranger, Shell must have entered into the sale of [the pesticide] with the intention that at least a portion of the product be disposed of during the transfer process …”. The alleged arranger’s intent is a crucial fact; Shell, a seller of an “unused, useful product,” did not intend for B&B to dispose of the pesticide at the site, but instead to re-sell it to its customers. Without intent to dispose, Shell is not liable.
The Court also addressed apportionment. B&B had operated for part of the 29 year period on land that was owned by two railroads, in addition to its own adjacent land. Although apparently the railroads did not ask for apportionment, the district court found them 6 % liable on the basis of three factors: 1) the portion of the railroads’ land compared to the site as a whole; 2) the time period B&B used the railroads’ land compared to the 29 year period, and 3) the subset of chemicals that were handled on the railroads’ land. The Ninth Circuit reversed, holding that proving apportionment is the PRPs’ burden and that the railroads didn’t even try to do so, so that the railroads are jointly and severally liable for all cleanup costs. The Supreme Court reversed again, holding that the facts in the record regarding the land area, time period, etc. were sufficiently definite for the district court to come up with an apportionment.
For more information please contact David Romine at dromine@langsamstevens.com.
April 13, 2009: EPA reaches largest settlement ever under audit policy
The EPA announced that it reached its largest settlement ever under its audit policy with Invista, a subsidiary of privately owned Koch Industries, inc. Invista will pay a $1.7 million penalty and spend up to $500 million to correct 680 violations at 12 facilities it acquired from DuPont in 2004.
EPA’s audit policy was adopted in 1995, and is designed to encourage companies voluntarily to discover, disclose and correct environmental violations. in august 2008, epa announced a refinement to the program for new owners of facilities, like Invista, to encourage them to make a “clean start.” consistent with these policies, EPA waived a large portion of the potential fines in the case.
Invista performed 45 separate audits at the 12 facilities, covering water, air, hazardous waste, emergency planning and preparedness, and pesticide programs. it makes a wide range of polymer-based fibers, including lycra, stainmaster, and coolmax.
For more information contact David Romine at dromine@langsamstevens.com
March 16, 2009: New Jersey General Assembly and Senate pass Site Remediation Reform Act, send to Governor for signature
Both houses of the New Jersey legislature passed the “Site Remediation Reform Act,” which would establish licensing requirements for “site remediation professionals” and require that most remedial actions be performed only under the direction of a licensed “site remediation professional.”
The “Site Remediation Reform Act” would establish within the Department of Environmental Protection a 13-member “Site Remediation Professional Licensing Board,” who will “establish licensing requirements for site remediation professionals and shall oversee the licensing and performance of site remediation professionals.” Any person who is otherwise required under New Jersey law to perform remediation of a contaminated site or underground storage tank due to a release of hazardous substances will be required to hire only state-licensed “site remediation professionals” to perform the remediation. The “highest priority” of a licensed site remediation professional, according to the legislation, will be “the protection of public health and safety and the environment,” i.e., not client interests.
March 6, 2009: Obama’s 2010 Budget Plan Assumes Reinstatement Superfund Tax
The new Administration’s proposed budget for 2010 assumes the Superfund tax would be reinstated. The proposed 2010 budget outline anticipates $17.2 billion in revenues to be generated from 2011 through 2019 by reinstating taxes CERCLA imposed on oil and chemical companies. An OMB document released February 26 says those taxes would annually generate “over $1 billion to clean up the nation's most toxic, contaminated sites within the superfund program”. OMB spokesman Kenneth Baer has reported that the administration’s budget assumes the same rates would apply as when the taxes expired in 1995. Two House pending bills would reinstate the tax as it was written in CERCLA. The first is the Superfund Polluter Pays Act of 2009 (H.R. 832) (introduced Rep. Frank Pallone (D-N.J.). Pallone is a senior member of the House Energy and Commerce Committee. The second bill is the Superfund Reinvestment Act of 2009 (HR 564) (was introduced Rep. Earl Blumenauer (D-Ore.). For more information, please contact Stephen Fitzgerald at sfitzgerald@langsamstevens.com.
February 16, 2009: Pennsylvania Law Weekly Reports on partner Larry Silver’s Pennsylvania Supreme Court case regarding the 2000 Immunity Act.
The Pennsylvania Supreme Court will hear arguments for the first time regarding the interpretation of the General Assembly's 2000 Immunity Act. On January 29, 2009, the Pennsylvania Supreme Court granted allocatur on the issues raised by plaintiffs in Pennsbury Village Associates v. Aaron McIntyre.
For more information, please contact Larry Silver at 215-732-3255 or by email at lsilver@langsamstevens.com.
January 26, 2009: Second Regional Greenhouse Gas Initiative (RGGI) CO2 Auction Held; Found to be Fair
The Regional Greenhouse Gas Initiative Inc. (RGGI), which includes New Jersey, announced the release of the “Post-Settlement Auction Report” summarizing the findings of Potomac Economics regarding the CO2 allowance auction held on December 17, 2008. Potomac Economics is RGGI’s independent market monitor.
In its report, Potomac Economics found no material concerns regarding the auction process or the results. Sixty-nine entities submitted bids to purchase nearly 108,709,000 CO2 allowances when only 31,505,898 CO2 allowances were available for sale. A CO2 allowance is one ton of CO2. Potomac Economics stated that the auction’s clearing price of $3.38 per allowance is consistent with the “underlying supply and demand fundamentals governing the CO2 allowance market.” Compliance entities or their affiliates, which value the allowances most highly, purchased most of the allowances in the auction.
The RGGI consists of 10 northeastern and Mid-Atlantic States: Connecticut, Delaware, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New York, Rhode Island, and Vermont. The member states have designed the first market-based, mandatory cap-and-trade program in the U.S. to reduce greenhouse gas emissions. RGGI member states have committed to cap and then reduce the amount of CO2 that power plants in their region are allowed to emit, limiting the region’s total contribution to atmospheric greenhouse gas levels. The auction raised 106.5 million dollars, which the ten RGGI states will invest in energy efficiency and renewable energy technologies, as well as other programs to benefit energy consumers.
For more information, please contact Thomas Storrer at tstorrer@langsamstevens.com.
January 1, 2009: Pennsylvania’s Right-to-Know Law, 65 P.S. §67.101, et seq., In Full Effect.
Right-to-Know Law now presumes that all records are public records—shifting burden to Agencies to show why document should not be produced.
On January 1, 2009, Pennsylvania’s Right-to-Know (“RTK”) Law, 65 P.S. §67.101, et seq., went into full effect. This law created the Pennsylvania Office of Open Records that enforces the RTK Law and serves as a resource for obtaining public records for citizens, public officials and members of the media. The most significant difference between the former and current laws is that now all records are presumed to be public records unless disclosure is barred by state or federal law, a judicial order, a privilege or one of the 30 exceptions listed in section 708 of the RTK Law. The burden was formerly on the requester, but is now on the agency to show why the record is not available or will not be produced. All Commonwealth, Local, Legislative and Judicial Agencies are subject to the new RTK Law. The RTK Law defines a record as “any information regardless of its physical form or character that documents a transaction or activity of an agency and is created, received, or retained pursuant to law or in connection with a transaction, business or activity of an agency.” Records include papers, letters, maps, books, tapes, photographs, film or sound recordings, information stored or maintained electronically and a data-processed or image-processed documents. E-mails can also be a form of public records, subject to exceptions.
Agencies are required to appoint an Open Records Officer. To file a RTK Law request, a requester should check to see if the agency has a RTK Form and if not should use the Uniform Request Form available from the Office of Open Records at: https://www.dced.state.pa.us/public/oor/form_righttoknow_request.doc. Any legal resident of the United States can request a record, including a person with a green card. Agencies are required, within 5 business days, to respond in writing to grant, deny, or invoke a 30-day extension for certain reasons. If the Agency fails to respond within 5 days, the request is deemed denied and the requester has the right to file an appeal with the Office of Open Records.
For more information, please contact Stephen Fitzgerald at sfitzgerald@langsamstevens.com.
December 29, 2008: EPA Revises Definition of Solid Waste With Hopes of Making Recycling Easier and More Cost-Efficient
EPA’s revised definition of solid waste, effective December 29, 2008, aims to streamline recycling and will affect approximately 5,600 facilities nationwide.
On October 30, 2008, the US EPA published notices of revisions to the definition of solid waste at 73 F.R. 64668 (a 133-page notice). The final rule became effective on December 29, 2008. According to EPA's notice, the rule change affects approximately 5,600 facilities that generate or recycle hazardous secondary materials that were regulated as RCRA Subtitle C hazardous waste.
The final rule that revises the definition of solid waste excludes certain hazardous secondary materials from regulation under Subtitile C of RCRA. Materials that are not eligible include materials recycled by "use constituting disposal" and burning for energy recover, inherently waste-like materials, materials already excluded from the definition of solid waste under 40 C.F.R. 261.4, spent lead-acid batteries and spent petroleum catalysts.
For more information, please contact Stephen Fitzgerald at sfitzgerald@langsamstevens.com.
December 18, 2008: Federal Judge Orders New Trial for Failure to Disclose Payments to Fact Witness
Paid witness’s response of “No sir, I am currently retired” to question of “Are you currently employed?” on direct examination was a misrepresentation requiring a new trial, court holds. In United States v. Cinergy Corp. et al., No. 1:99-cv-1693-LJM-JMS (S.D. Ind. Dec. 18, 2008) (unpublished), the court held that defendant’s failure to disclose its payments of $200 per hour to a fact witness who was defendant’s retired employee was a misrepresentation and ordered a new trial. In a case involving fourteen alleged violations of the New Source Review(NSR) provisions of the Clean Air Act, a jury cleared defendant of ten of the fourteen violations in the liability phase of the trial in May 2008. A month before trial (apparently after depositions), the defendant had entered into a consulting agreement with the witness that provided for payment of $200 an hour in exchange for providing a number of services, including “live testimony.” At trial, defense counsel asked the witness, “Are you currently employed?” and the witness answered “No sir, I am currently retired.” The subject was not addressed on cross-examination. After the verdict, the defendant produced the witness’s consulting agreement in response to the government plaintiffs’ discovery request relating to the upcoming remedy phase of the trial. After reading the agreement, the plaintiffs moved for a new trial on the ground that the defendant’s misrepresentation about the witness’s pay was unfair and could only be cured by a new trial on liability. The court first addressed the propriety of paying fact witnesses under any circumstances. The relevant statute, 18 U.S.C. § 201(d), allows payments to fact witnesses for “the reasonable cost of travel and subsistence incurred and the reasonable value of time lost.” But $200 per hour, the court held, was “beyond the reasonable value of time lost for a person who purports to be retired.” The court therefore found that the payments were not “severely circumscribed” as required by the statute as interpreted by Hamilton v. Gen. Motors Corp., 490 F.2d 223, 229 (7th Cir. 1973).But the violation of 18 U.S.C. §201(d) was not the reason the court granted the motion. Instead, the court held that the witness “perverted the truth,” especially because one of the defendant’s themes at trial was that, unlike the government plaintiffs, it did not have any highly paid expert witnesses. The court also held that the defendant had had a duty to produce the consulting agreement before the liability phase of the trial as a supplement to its discovery responses. For more information, contact Dave Romine at dromine@langsamstevens.com or at 215-732-3255.
November 20, 2008: Winds in Washington: WA Supreme Court Upholds Law Allowing Governor to Pre-empt Local Land-Use Decisions for Wind Farm
Washington’s Energy Facilities Site Locations Act allows Governor to approve site location of facilities that use wind power exclusively without authorization from the county in which the wind turbines will be placed.
The Washington Supreme Court, sitting en banc, affirmed the governor's final decision to approve the site certification application of Horizon Wind Energy, LLC in Residents Opposed To Kittitas Turbines (“ROKT”) v. State Energy Facility Site Evaluation Council, No. 81332-9, 2008 Wash. LEXIS 1051 (Wash. Nov. 20, 2008). In ROKT, the Court determined the state had authority to permit construction and operation of energy-producing wind turbines without authorization from the county in which the wind turbines would be placed under Washington’s Energy Facilities Site Locations Act (EFSLA), ARCW § 80.50, et seq.
In an attempt to keep the turbines from their county, Petitioners argued EFSLA did not authorize the governor to preempt county land use laws when siting a facility that exclusively uses wind power, that the State abused its authority in deciding whether to pre-empt county land use laws, that the State violated the doctrine of appearance of fairness, and that the State failed to consider adequately an environmental impact statement. The Court rejected all of Petitioners' claims and held that the governor properly exercised her authority under EFSLA to approve the site certification for the project.
For more information, please contact Stephen Fitzgerald at sfitzgerald@langsamstevens.com.
September 19, 2008: President Bush signs new FRE 502 into law; E-Discovery will change
The new Rule is designed to make discovery, especially e-discovery, cheaper by limiting waiver of the attorney-client privilege and the work product doctrine in both federal and state courts.
On September 19, 2008, President Bush signed S. 2450, enacting into law new Federal Rule of Evidence 502. According to the Advisory Committee on Evidence Rules, Rule 502 has two main goals: 1) making discovery, especially electronic discovery, cheaper by providing clear-cut rules regarding subject matter waiver through inadvertent disclosure of attorney-client communications or documents subject to the work product doctrine, and 2) resolving disputes in the courts about the effect of such disclosures. It is the first time the Advisory Committee has explicitly cited reducing discovery costs as a purpose of a Rule of Evidence. The Advisory Committee notes are not part of S. 2450, but are likely to influence courts’ interpretation of the new Rule.
Subdivision (a) provides that a waiver through inadvertent disclosure operates only as to the material disclosed, unless the discloser used the material in an intentional and misleading way. Subdivision (b) provides that inadvertent disclosure will not result in a waiver if the discloser takes reasonable steps to prevent disclosure and also promptly tries to retrieve it. These measures are designed to avoid “record-by-record pre-production privilege review” of “millions” of electronic documents. Advisory Committee Note, quoting Hopson v. City of Baltimore, 232 F.R.D. 228, 244 (D. Md. 2005).
Among other things, subdivision (c) provides that when an inadvertent disclosure is made at the federal level, state courts must follow Rule 502 in later proceedings when dealing with the same material. Subdivision (d) provides that an order holding that a particular disclosure is not a waiver is binding on all federal and state courts. Finally, subdivision (e) provides that confidentiality agreements are not binding on non-parties unless incorporated into a court order under subdivision (d). Rule 502 is the first federal Rule of Evidence binding on state courts.
The Rule got its start in January 2006, when then-chairman (now ranking Republican member) of the House Judiciary Committee, Jim Sensenbrenner (R.- Wis.), wrote the Administrative Office of U.S. Courts asking the Judicial Conference to write a rule protecting privileges when a disclosure is the result of an “innocent mistake.” Chairman Sensenbrenner cited the cost of discovery, including electronic discovery, as a reason for the Rule.
The Advisory Committee drafted the Rule and transmitted it to Congress in September 2007 along with the Committee Notes. The Senate passed the bill in February 2008 and the House passed it September 8.
The Rule is in effect immediately for all newly-filed federal cases and for existing cases “insofar as is just and practicable.”
For more information, visit http://www.uscourts.gov/rules/evidence502.html
or contact Dave Romine at dromine@langsamstevens.com or at
215-732-3255.
July 28, 2008: Third Circuit affirms CERCLA judgment after trial won by Langsam Stevens attorneys
The United States Court of Appeals for the Third Circuit affirmed the judgment in a CERCLA (Superfund) contribution case in favor of a group of businesses represented by Langsam Stevens attorneys. Action Mfg. Co. v. Simon Wrecking Co., 2008 U.S. App. LEXIS 16145 (3d Cir. July 28, 2008). At trial, attorneys Larry Silver, David Romine and Stephen Fitzgerald won a judgment of over $1.5 million against a transporter of hazardous materials. On appeal, the defendant argued that the evidence was not sufficient to establish transporter liability under Section 107(a)(4) of CERCLA (42 U.S.C. 9607(a)(4)), and that the district court should have entered a declaratory judgment, not a judgment for a sum certain, before clean-up of the Site had been completed.
After considering briefs from appellants and Langsam Stevens attorneys Silver and Romine for appellees, the Third Circuit affirmed the district court's judgment without oral argument. The Court held that there was sufficient evidence presented in the district court to hold the defendant liable, and that a district court is not limited to declaratory judgments in private CERCLA contribution actions. Click here for a copy of the Third Circuit's opinion.
March 8, 2007: USEPA Proposes Clarifying The “Reasonable Possibility” Recordkeeping And Reporting Standard
On March 8, 2007 the USEPA proposed revisions to the regulations that govern the major new source review (“NSR”) programs required by parts C and D of title I of the Clean Air Act (42 U.S.C §§ 7401 to 7671q). Entities in all industry groups as well as States and local permitting authorities are affected by this proposed revision. The changes proposed by USEPA clarify the “reasonable possibility” recordkeeping and reporting standard promulgated on December 31, 2002 (“2002 NSR Reform Rules”).
This proposed revision responds to the United States Court of Appeals for the D.C. Circuit’s remand to USEPA of “the recordkeeping provisions to EPA either to provide an acceptable explanation for its ‘reasonable possibility’ standard or to devise an appropriately supported alternative …”. New York v. United States Envtl. Prot. Agency, 413 F.3d 3, 44 (D.C. Cir. 2005). The 2002 NSR Reform Rules changed the applicability test for non electric utility steam generating unit (EUSGU) sources and created certain recordkeeping requirements under the “reasonable possibility” standard.
The 2002 NSR Reform Rules added the same “reasonable possibility” reporting requirements for EUSGUs. The USEPA set forth two alternatives for identifying circumstances under which the increase in emissions caused by a project triggers the “reasonable possibility” recordkeeping and reporting requirement. The first alternative, labeled by USEPA as its preferred option, is the “Percentage Increase Trigger.” Under this alternative: …you would conclude there is a reasonable possibility that your change will result in a significant emissions increase if the change's projected actual emissions increase equals or exceeds a percentage of the applicable NSR significance level for any pollutant. We propose to use 50 percent of the significance level for the relevant regulated NSR pollutant as the trigger, but we solicit comment on use of a different percentage to trigger recordkeeping and reporting, such as 25, 33, 66 or 75 percent. The significance levels for regulated NSR pollutants are provided in 40 C.F.R. §§ 51.165(a)(1)(x), 51.166(b)(23)(i), 52.21(b)(23)(i), and paragraph II.A.10 in appendix S to part 51. 72 Fed. Reg. 10445, 10449 (March 8, 2007).
The second alternative is named the “Potential Emissions Trigger” and under this alternative: …you would conclude there is a reasonable possibility that your change will result in a significant emissions increase if the post-change potential to emit equals or exceeds NSR significance levels (even though the source opts to base its determination as to whether NSR applies on projected actual emissions). 72 Fed. Reg. at 10450. Comments to the proposed rulemaking must be received on or before May 7, 2007.
Comments may be submitted online at http://www.regulations.gov, by email at a-and-r-docket@epa.gov, by fax (202) 566-1741, by mail at Air and Radiation Docket and Information Center, Environmental Protection Agency, Mailcode: 6102T, 1200 Pennsylvania Ave., NW., Washington, D.C. 20460, or by hand delivery at the Environmental Protection Agency, EPA West Building, Room 3334, 1301 Constitution Ave., NW., Washington, D.C.
For more information, please contact Stephen Fitzgerald at sfitzgerald@langsamstevens.com.
Pennsylvania Supreme Court Affirms Deference to DEP’s Interpretation of its Regulations, Finds Used Tires Are Waste
In Tire Jockey Services, Inc. v. Commonwealth of Pennsylvania, Department of Environmental Protection, the Pennsylvania Supreme Court ruled that DEP’s reasonable interpretation of its regulations must be given deference by the Courts. The Court further held that used tires being stored and processed at a Bucks County facility prior to reuse were waste, and that the facility required a processing permit.
On February 20, 2007, the Pennsylvania Supreme Court ruled that DEP’s reasonable interpretation of its regulations must be given deference by the Courts. The Court further held that used tires being stored and processed at a Bucks County facility prior to reuse were waste, and that the facility required a processing permit. In Tire Jockey Services, Inc. v. Commonwealth of Pennsylvania, Department of Environmental Protection, No. 178 MAP 2004 (Pa., February 20, 2007), Tire Jockey Services, Inc. (”Tire Jockey”) began operating a used tire processing facility without first obtaining a waste processing permit from the Pennsylvania Department of Environmental Protection (“DEP”).
Specifically, Tire Jockey received discarded whole tires at the facility. The whole tires were visually inspected and pressure tested to determine if they could be reused. Those that could be reused were categorized by size, branded, stored as inventory and made available for sale. Those that could not be reused were cut into component pieces for use in the manufacture of rubber mats, playground safety covering and other products.
Generally, a waste processing facility requires a permit from DEP. Much of the decision revolved around whether the used tires were exempted from the definition of “waste” found in the Residual Waste Regulations. The waste definition provides that waste is “discarded material which is recycled or abandoned.” 25 Pa. Code 287.1. The definition further provides that “materials that are not waste when recycled include materials when they can be shown to be recycled by being . . . used or reused as ingredients in an industrial process to make a product or employed in a particular function as a substitute for a commercial product, provided that the materials are not being reclaimed.” Id.
The Court first found that the waste tires could only be exempted from the definition of waste “when recycled” not before being recycled. Used tires stored at the facility that will be recycled are not exempt from the definition of waste. The Court then found that if the used tires must be processed to become effective substitutes for commercial products or ingredients in an industrial process, they are not exempt from the definition of waste. The Court concluded that the used tires at the facility were processed in some fashion before they could become effective substitutes for commercial products or ingredients in an industrial process, even if such processing only included visual inspection and pressure testing.
The Court also questioned whether a used tire could ever qualify as an “ingredient” in an industrial process. More significant than the specific holding of the case is the Court’s deference to DEP’s interpretation of its regulations. The Court found that the DEP is in the best position to interpret its regulations. The Court further stated that when a court reviews a regulation issued pursuant to an agency’s legislative rule-making power, the court may not substitute its own judgment for that of the agency. Rather, the court must determine only whether the regulation is consistent with the statute under which it is promulgated and whether the agencies’ interpretation of the regulation is erroneous or inconsistent with the regulation.
In the case at bar, the Court concluded that DEP’s interpretation that the used tires at the facility were waste was reasonable.
New Jersey Proposes To Require Notification to County Health Departments And Local Health Agencies Of Pending Remedial Actions
The New Jersey State Assembly received and referred to the Assembly Environment and Solid Waste Committee Senate bill S-2199, that any person, including the NJDEP, provide to the county health department and certified local health agency a written notification of remedial actions and describe the activities that took place at the contaminated site.
On February 8, 2007, the New Jersey State Assembly received and referred to the Assembly Environment and Solid Waste Committee Senate bill S-2199, which proposes to amend N.J.S.A. 58:10B-24.1, to require that any person, including the Department of Environmental Protection (“NJDEP”), provide to the county health department and certified local health agency a written notification of remedial actions. The notification must describe the activities that took place at the contaminated site.
Currently, persons responsible for a remedial action need only notify the clerk of the municipality of a pending remedial action. Parties responsible for remedial actions at contaminated sites must also provide county health departments or certified local health agencies with a copy of the remedial action work plan with any updates or status reports and a copy of the site health and safety plan upon request.
The bill which would take effect immediately additionally requires that NJDEP notify each county health department and certified local health agency of the existence of the New Jersey master list of known hazardous discharge sites prepared pursuant to N.J.S.A. 58:10-23.15 et seq.
January 20, 2007: Supreme Court Grants CERT to Determine Interplay between Endangered Species Act and the Clean Water Act
On January 5, 2007, the Supreme Court granted a writ of certiorari to the Ninth Circuit U.S. Court of Appeals to hear an important case regarding the interplay between the Endangered Species Act (ESA) and the Clean Water Act (CWA). In 2002, the EPA delegated to the State of Arizona its authority to administer the National Pollution Discharge Elimination System (NPDES) under the CWA within the State. Arizona became the 45th state to receive the delegation of authority from EPA. EPA based its decision on the statutory criteria in the CWA, and all parties apparently agree that the State of Arizona satisfied those requirements. Plaintiffs, an environmental organization and individual environmentalists, filed suit, alleging that EPA should have taken into consideration the potential impact of its delegation on endangered species in accordance with Section 7(a)(2) of the ESA, which requires federal agencies to insure that its actions are not likely to harm endangered species. Before delegation, EPA took into account the requirements of the ESA when making its NPDES permitting decisions in Arizona. Apparently EPA considered the needs and habitats of several endangered species, including the southwestern willow flycatcher, Pima pineapple cactus, Huachuca water umbel, and the cactus ferruginous pygmy owl, when making its permitting decisions. After delegation, the State of Arizona need not take the same considerations into account because states, unlike federal agencies, are not subject to the same obligations to protect endangered species under Section 7(a)(2). Plaintiffs filed suit to continue the federal government’s consideration of endangered species when making NPDES permitting decisions. The issue in dispute is whether, in delegating its permitting authority, EPA is required to comply with Section 7(a)(2) of the ESA. The Ninth Circuit held that EPA’s delegation was arbitrary and capricious because it failed to take the ESA into account. Defenders of Wildlife v. U.S. EPA, 420 F.3d 946 (9th Cir. 2005). The Supreme Court granted cert., and asked the parties to brief the issue whether EPA’s delegation was arbitrary and capricious, and if so, whether the Ninth Circuit’s remand to EPA was proper. The case could have a significant impact on how EPA delegates its permitting authority under NPDES and other programs.
EPA Begins Lower Manhattan Test and Clean Program in Response to Collapse of World Trade Center Towers
January 16, 2007 marked the opening of U.S. Environmental Protection Agency’s registration period for its Lower Manhattan Test and Clean Program. The Test and Clean Program has been called the “final phase” in EPA’s response to the terrorist attacks of September 11, 2001. Though widely criticized for being under-funded, the program may affect the clean-up efforts of many residents and building owners in Lower Manhattan. Residents and building owners have until March 30th to register with the EPA to have the air and dust in their buildings tested for contaminants such as asbestos, fiberglass, lead and polycyclic aromatic hydrocarbons. The World Trade Center collapse released dust and contaminants into the air, which settled in many Lower Manhattan buildings. In months following the attacks, EPA offered a voluntary clean and test program through which more than 4,000 residences were cleaned and/or tested between September 2002 and June 2003. Under the current Test and Clean Program, the EPA will test dust in Lower Manhattan residential units and buildings for lead, polycyclic aromatic hydrocarbons (PAHs), asbestos and fibrous glass-like materials called man-made vitreous fibers (MMVF). For in-air testing, the EPA will look for asbestos and MMVF only. If these materials are found in an apartment or in the areas tested within a building above established levels, the EPA will fund the clean-up. The program covers the area of Lower Manhattan south of Canal Street and west of Allen and Pike Streets. The program has limited funding, therefore registrants will be prioritized based on proximity to the World Trade Center. Because area property owners need to redevelop quickly, many have already voluntarily begun demolishing or deconstructing their buildings in order to expedite the redevelopment process. In these cases, the EPA and private parties negotiate the specifications for work at the property owner’s expense. The EPA takes the lead in coordinating efforts of federal, state and city agencies to ensure that the demolition is performed in a manner that protects against the migration of contaminants. For more information contact Deborah Moody at 215-732-3255 or dmoody@langsamstevens.com
Court (E.D. Pa.) Says No Knowledge of Ultimate Disposal Required for “Arranger” Liability under CERCLA §107(a)(3)
On December 13, 2006, The United States District Court for the Eastern District of Pennsylvania held that a waste disposal company that subcontracted hazardous substance disposal faces “arranger” liability under CERCLA §107(a)(3) even if it believed the subcontractor was disposing of the material elsewhere. Agere Systems, Inc. v. Advanced Environmental Technology Corp., No. 02-3830, (E.D. Pa. Nov. 17, 2006). Under the reasoning of Agere Systems, arranger liability attaches regardless of whether a contractor knows the exact location of the disposal or release of hazardous substances. Under CERCLA, “arranger” liability attaches to: any person who by contract, agreement, or otherwise arranged for disposal or treatment, or arranged with a transporter for transport for disposal or treatment, of hazardous substances owned or possessed by such person, by any other party or entity, at any facility or incineration vessel owned or operated by another party or entity and containing such hazardous substances… CERCLA §107(a)(3); 42 U.S.C. § 9607 (2006). The Plaintiffs in Agere Systems, Inc., were a group of potentially responsible parties (PRP’s) that agreed to fund and perform the cleanup at the Borehead Farms Superfund Site, and sought contribution under CERCLA §113 from Advanced Environmental Technology Corporation (“AET”), a company that transports and disposes of waste. AET argued it was not liable under a pinnacle Third Circuit CERCLA case, Morton International v. A.E. Staley Co., 343 F.3d 669 (3d Cir. 2003), because it contracted with the Site's owner to transport and dispose of waste at the Wissinoming Industrial Park in Philadelphia – not the Borehead Farms Superfund Site. The district court held that specific knowledge of where hazardous substances will end up is not required for arranger liability to attach under CERCLA §107(a)(3). General knowledge that some release will occur somewhere is sufficient for arranger liability to attach. For more information, please contact Stephen Fitzgerald at sfitzgerald@langsamstevens.com.
December 11, 2006: Voluntary Climate Change Emissions Banking Forms Available Soon
December 11, 2006, marked the close of the comment period on the U.S. Department of Energy’s proposed revised forms for voluntary reporting of greenhouse gas emissions. Use of the forms enables large and small companies to “bank” any subsequent reductions in the event the United States implements mandatory reductions in greenhouse gas emissions. Ideally, companies would then be able to either “use” those reductions to comply with future requirements, or sell them to other companies needing to make reductions. Along with the proposed forms, DOE issued revisions to the voluntary program designed to encourage the participation of companies, including small businesses and agricultural companies. DOE is expected to make the final forms available in hard copy in early 2007, electronically for electronic filing sometime in 2007. Updated information on the program, administered by DOE’s Energy Information Administration, is available at http://www.eia.doe.gov/oiaf/1605/aboutcurrent.html .
New Mexico Court of Appeals Affirms Convictions Resulting from Attorney’s Investigation and Indictments as a Prosecutor
On October 30, 2006, the New Mexico Court of Appeals affirmed the felony convictions of a defendant who Langsam Stevens & Silver attorney, Thomas Storrer investigated and indicted as his first case as an assistant district attorney with the 12th Judicial District Attorney’s Office in New Mexico. The New Mexico Court of Appeals affirmed, and set precedent, that the trial court’s decision that the statute under which Mr. Storrer charged the defendant was not unconstitutionally vague and that the term “public assistance” as used within the statute included the defendant’s public housing benefits. The Court specifically noted, when discussing the statute’s constitutionality, that the “evidence presented a reasonable manner in which to separate the counts in accordance with [the statute].” In the first public assistance fraud cases ever within the 12th Judicial District, Mr. Storrer investigated and indicted four individuals under an obscure criminal statute in a public assistance act. To date, three of the four individuals have pled guilty or have been convicted. The fourth individual has an outstanding warrant for her arrest. On November 13, 2006 the defendant filed a petition for writ of certiorari to the New Mexico Supreme Court, appealing the Court of Appeals decision. We will update this news piece following the NM Supreme Court’s decision to either grant or deny the petition. For more information, please contact Tom Storrer at tstorrer@langsamstevens.com or by calling the office at 215-732-3255.
January 20, 2007: Supreme Court Grants CERT to Determine Interplay between Endangered Species Act and the Clean Water Act
On January 5, 2007, the Supreme Court granted a writ of certiorari to the Ninth Circuit U.S. Court of Appeals to hear an important case regarding the interplay between the Endangered Species Act (ESA) and the Clean Water Act (CWA). In 2002, the EPA delegated to the State of Arizona its authority to administer the National Pollution Discharge Elimination System (NPDES) under the CWA within the State. Arizona became the 45th state to receive the delegation of authority from EPA. EPA based its decision on the statutory criteria in the CWA, and all parties apparently agree that the State of Arizona satisfied those requirements. Plaintiffs, an environmental organization and individual environmentalists, filed suit, alleging that EPA should have taken into consideration the potential impact of its delegation on endangered species in accordance with Section 7(a)(2) of the ESA, which requires federal agencies to insure that its actions are not likely to harm endangered species. Before delegation, EPA took into account the requirements of the ESA when making its NPDES permitting decisions in Arizona. Apparently EPA considered the needs and habitats of several endangered species, including the southwestern willow flycatcher, Pima pineapple cactus, Huachuca water umbel, and the cactus ferruginous pygmy owl, when making its permitting decisions. After delegation, the State of Arizona need not take the same considerations into account because states, unlike federal agencies, are not subject to the same obligations to protect endangered species under Section 7(a)(2). Plaintiffs filed suit to continue the federal government’s consideration of endangered species when making NPDES permitting decisions. The issue in dispute is whether, in delegating its permitting authority, EPA is required to comply with Section 7(a)(2) of the ESA. The Ninth Circuit held that EPA’s delegation was arbitrary and capricious because it failed to take the ESA into account. Defenders of Wildlife v. U.S. EPA, 420 F.3d 946 (9th Cir. 2005). The Supreme Court granted cert., and asked the parties to brief the issue whether EPA’s delegation was arbitrary and capricious, and if so, whether the Ninth Circuit’s remand to EPA was proper. The case could have a significant impact on how EPA delegates its permitting authority under NPDES and other programs.
New Jersey Department of Environmental Protection amended the Oversight Rule.
November 17, 2006 -- New amendments to the Oversight Rule (the “Rule”), N.J.A.C. 7:26C et seq., which give the NJDEP more power to assess penalties and bring enforcement actions recently became effective. The NJDEP first promulgated the Rule in 1993 to identify the administrative procedures for a person to participate in the remediation of a contaminated site under NJDEP oversight, and to establish the procedures determining the applicable oversight. The new amendments are intended to implement the requirements of the Grace Period Law and to make NJDEP more effective in overseeing site remediations. The Grace Period Law established time periods in which a person may correct deficiencies or violations without being subject to penalties. The amendments identify violations as either minor or non-minor and provide a penalty for each violation. The NJDEP’s designation of a violation as minor or non-minor is based upon the statutory criteria contained in the Grace Period Law at N.J.S.A. 13:1D-129. The penalty scheme, detailed in N.J.A.C. 7:26C-10, assures that NJDEP will be consistent among the various oversight documents for similar violations. The Rule amendments have no effect in which any contaminated site is remediated or developed in New Jersey. The amendments set forth the new procedures by which NJDEP identifies and manages deficiencies or violations in work pursuant to an oversight document. If a party fails to make a required submission pursuant to an oversight document, and it is a minor violation, the party will receive a notice of violation prior to the assessment of penalties and will be afforded an opportunity to correct the violation. If a NJDEP receives a deficient submission to an oversight document, the party will be apprised of the nature of the deficiency through a notice of deficiency. The person will have the opportunity to address the deficiencies in accordance with a schedule developed through discussion with the case manager. If the person fails to correct the deficiency or violation within the allotted grace period, NJDEP may assess a penalty or take other enforcement action. In addition, the NJDEP has amended the Rule regarding voluntary cleanups pursuant to a Memoranda of Agreement (MOA). The amendments do not change how an MOA is initially obtained, nor do the amendments change how the Voluntary Cleanup Program is implemented. But, there are significant changes. One amendment allows a volunteer remediating a site pursuant to an MOA a period of time to correct a deficiency in complying with the MOA prior to termination. This will further encourage voluntary remediation, including the remediation of Brownfields, by giving the volunteer every possible opportunity to succeed in the remediation process. If the volunteer is deficient in complying with the terms of the MOA, the NJDEP will notify the volunteer of the deficiency, and allow the volunteer time to correct the deficiency. The amendments allow a volunteer to terminate a MOA. Previously, the Rule only provided that NJDEP could terminate a MOA. Now, the person performing work pursuant to a MOA may terminate the agreement. Additionally, the amendments specifically exclude a volunteer in a MOA from civil administrative penalties, including the penalty provisions of N.J.A.C. 7:26C-10.4. The consequence for non-compliance on MOA cases is MOA termination. But the unilateral termination of a MOA is not without collateral consequences either. The amendments provide that a person, or any other affiliated with that person, who has been subject to a unilaterally terminated MOA, will have to pay a $1,000.00 fee on any subsequent MOA application. NJDEP’s intent with the MOA re-application procedures is to reduce the number of frivolous MOA applications, thus permitting the NJDEP to focus its limited resources on remediations by developers who are committed to the remediation project. Finally, it is worth noting that NJDEP has also ceased issuing conditional approvals in order to efficiently implement the Grace Period Rule. NJDEP contends that conditional approvals made the determination of compliance and non-compliance of a conditional approval difficult. Now, NJDEP expects a party conducting remediation to submit documents that NJDEP can approve unconditionally. The NJDEP will strictly abide by the written agreement between it and the party responsible for conducting remediation. Failure to address noted deficiencies of submissions required by the agreement, the technical requirements or the proposed schedule within the specified timeframe would be the issuance of a NOV or a NOIT for MOA cases. Non-compliance with the NOV or NOIT will lead to assessment of penalties prescribed by the Grace Period Rule or the termination of the MOA. For more information, contact Thomas R. Storrer, Tstorrer@langsamstevens.com or 215-732-3255.
Pennsylvania Supreme Court Rejects Non-Compliance with Certificate of Merit Requirements in Professional Negligence Actions
November 13, 2006 – The Pennsylvania Supreme Court considered equitable exceptions to the certificate of merit rule governing professional liability actions in its first ruling on the procedural rule Pa.R.C.P. 1042.1 -1042.8. This decision affirms the Court’s commitment to the certificate of merit requirement that protects professionals from defending non-meritorious malpractice claims. In Womer v. Hilliker, the Court held that equitable exceptions may be considered in the context of removing a judgment of non pros under Pa.R.C.P. 3051; however, no equitable exception is permitted where plaintiff fails to file a certificate of merit on the record. The Court rejected plaintiff’s request that the Court exercise discretion under Pa.R.C.P. 126, which allows the court to disregard procedural errors. The plaintiff argued that the Court should overlook his failure to file a certificate of merit because he substantially complied with the rule by providing an expert report within the 60-day period. The Supreme Court held that Rule 126 and the doctrine of substantial compliance were inapplicable where there is a “wholesale failure to take any of the actions that one of our rules requires.” Under the certificate of merit rule, a plaintiff must file a certificate of merit affirming that an expert has reviewed the case within 60 days of filing a negligence action against a professional, such as a medical professional, engineer, geologist, architect or attorney. Pa.R.C.P. 1042.3 requires that an expert has provided a written statement that there exists a reasonable probability that the professional involved deviated from the acceptable professional standard and that the conduct caused the injuries complained about in the complaint. In Womer v. Hilliker, the plaintiff provided an expert report prior to the expiration of the 60 days, but did not file a certificate of merit. The defendants secured a judgment of non pros, which the trial court refused to open or strike off. The Superior Court reversed, determining that the plaintiff reasonably believed that he had substantially complied with the rule by providing the expert report itself, rather than a certificate of merit. The Supreme Court certified the case for appeal, requesting that the parties address whether equitable exceptions should play a role in the application of the certificate of merit rule. Chief Justice Cappy wrote the opinion, in which Justices Newman, Saylor and Eakin joined. Justice Baer wrote a dissenting opinion, in which Justice Castille joined. For more information or a copy of the opinion, contact Joanna A. Waldron at 215-732-3255 or jwaldron@langsamstevens.com.
EPA’s ‘All Appropriate Inquiry Rule’ Takes Effect
On November 1, 2006, the Environmental Protection Agency’s All Appropriate Inquiry (“AAI”) Rule took effect. The new AAI Rule was promulgated under the authority of the Brownfields Revitalization and Environmental Restoration Act of 2001. The Rule establishes new standards for conducting environmental due diligence when purchasing commercial and other types of property. If done properly, an AAI investigation may allow the purchaser of property to escape federal Superfund liability as an innocent landowner, bona fide prospective purchaser or a contiguous property owner. An AAI investigation is also required to obtain certain federal Brownfield grants.
Settlement Agreements Between Private Parties Can Provide Contribution Protection Under CERCLA §113(f)
In November of 2006, the Eastern District Court of Missouri agreed with the Eastern District of Pennsylvania that settlements agreements between private parties provide contribution protection under CERCLA. In U.S. v. Mallinckrodt, E.D. Mo., No. 4:02CV01488, 11/15/06, the district court relied on Lyncott Corp. v. Chemical Waste Management Inc., 690 F. Supp. 1409 (E.D. Pa. 1988), among other subsequent cases, when holding that CERCLA contribution protection under 42 U.S.C. §9613(f)(2) applies to settlements agreements between private parties. The issue in Mallinckrodt arose when Mallinckrodt, a defendant seeking contribution in a CERCLA cost recovery action brought by the United States, filed a motion for court approval of a settlement agreement between it and third party defendants. The settlement agreement provided the third party defendants contribution protection under CERCLA §113(f)(2). The United States opposed Mallinckrodt’s motion because CERCLA §113(f)(2) extends contribution protection only to parties who resolve their liability to the United States or a State, and not with other private parties. Mallinckrodt argued that although CERCLA §113(f)(2) applies only to settlements involving the United States or a State, CERCLA §113(f)(1) and federal common law provides the statutory authority to extend contribution protection to private parties who enter into settlement agreements. Although the facts and procedure in Mallinckrodt are quite different from Lyncott, both courts reasoned that contribution protection in settlement agreements between private parties is consistent with the purpose of CERCLA §113(f), to encourage settlement with responsible parties and to provide those parties finality. For more information, please contact Thomas R. Storrer at tstorrer@langsamstevens.com or 215-732-3255. The Supreme Court will likely hear oral argument this spring. For more information, please contact David Romine at dromine@langsamstevens.com or 215-732-3255.
October 27, 2006: Publicly Owned Treatment Works Face New Permitting Requirements for Wet Weather Overflows
The USEPA announced recently that it will adopt a policy requiring that Publicly Owned Treatment Works (POTWs) which anticipate “peak wet weather” overflows must obtain prior approval at the time of permitting or re-permitting the facility. Peak wet weather overflows occur when precipitation enters a sanitary sewer system, such as by infiltration into sewer lines or manhole covers, and causes the plant’s flow to exceed its treatment capacity. The policy sets forth EPA’s required demonstration that the POTW has no feasible alternative, and explains that in some situations the permit may contain a schedule to implement technologies to reduce or eliminate overflows. The policy allows permitted overflows to bypass secondary bacteriological treatment, and then be “blended” back into the portion of flow that has been fully treated. To avoid permitting delays, POTWs will need to take a proactive approach well in advance of applying for their permit. Necessary activities may include identifying and implementing available measures to reduce peak wet weather flows into their treatment works, planning and implementing capital improvements to their treatment systems, evaluating means of treating diverted flows, and evaluating potential stream impacts of diversion and blending.
October 12, 2006: Third Circuit to Consider Whether the Supreme Court Established a Jurisdictional Threshold for Superfund Contribution Actions.
The District Court for the Western District of Pennsylvania certified its July 13, 2006 ruling in Beazer East Inc. v. Mead Corp. for interlocutory appeal to the Third Circuit on the question of whether the Supreme Court established a jurisdictional threshold for superfund contribution actions in the Cooper v. Availl decision. As reported here in July, in denying Mead’s motion for dismissal, the district court had determined that an underlying § 106 or 107 action is not a jurisdictional threshold for a claim under 42 U.S.C. § 9613(f)(1), commonly known as a “§ 113(f)(1)” claim, but rather is “an element of a claim for relief.” In granting Mead’s application for interlocutory appeal, the district court noted that “there is substantial ground for difference of opinion on the jurisdictional implications of Aviall.” The district court cited several cases offered by Mead from the First and Second Circuits holding that that the Availl condition -- requiring a § 106 or § 107 civil action in order to seek contribution under § 113(f)-- was jurisdictional. The district court has the discretion to certify questions for interlocutory appeal where that question involves a “controlling question of law”, where there is “substantial ground for difference of opinion” and where the determination of the question may “materially advance the ultimate termination of the litigation.” For more information or a copy of the order, contact Joanna Waldron at 215-732-3255.
October 2006: NJDEP Update on NRD and Loss of Use
In August 2006, the court dismissed NJDEP’s NRD loss of use claim in the NJDEP, et al. v. ExxonMobil Corp., 2006 WL1477161 (Law Div. 2006). Recently, in a reply brief and opposition to a motion for summary judgment on a NRD claim in case in which Langsam Stevens & Silver LLP represents a party, the NJDEP revealed their arguments in support of their NRD loss of use claims. In their brief, NJDEP argued that compensation for loss of use of natural resources, such as ground water, is supported through statutory construction, legislative intent and administrative interpretation. NJDEP contends that the plain language of recent Spill Act amendments contemporaneous with the NJDEP’s NRD initiative is evidence of the Legislature’s intent that compensatory restoration damages are recoverable under the Spill Act. Additionally, as the expert agency to which courts must defer, NJDEP has defined “restoration” to include the returning of the resource to its pre-discharge condition, or “primary restoration”, and the compensation for interim loss or “compensatory restoration.” NJDEP also informed the court that the Appellate Division granted leave to appeal the ExxonMobil decision and established an expedited briefing schedule. To date, the court in our case has not issued a decision regarding the motion to dismiss the NRD. If you would like to discuss these events, its potential impact or receive a copy of the entire brief, please call Mark A. Stevens at 215-732-3255 or email him at mstevens@langsamstevens.com.
September 28, 2006: Pennsylvania’s Landfill Tipping Fee Extension and Municipal Recycling Grant Requirements Approved by Senate Committee
The Pennsylvania Senate’s Environmental Resources and Energy Committee approved amendments to the Pennsylvania’s Municipal Waste Planning, Recycling and Waste Reduction Act of 1988.
Aviall’s CERCLA §107 cost recovery, implied contribution and federal common law contribution claims dismissed on remand.1Aviall’s CERCLA §107 cost recovery, implied contribution and federal common law contribution claims dismissed on remand.
September 8, 2006 — On remand from the United States Supreme Court, the District Court of the Northern District of Texas considered whether Aviall had waived its §107 claim and, if not waived, whether a potentially responsible party could seek cost recovery or contribution under §107 or common law. See Aviall Services, Inc. v. Cooper Industries, Civil Action No. 3:97-CV-1926-D (Slip Op.) (Aug. 8, 2006). In the Cooper Indus. v. Aviall Servs., 543 U.S. 157, 125 S. Ct. 577, 160 L. Ed. 2d 548 (2004), the Supreme Court refused to consider this issue as it had not been fully considered by the courts below. Concluding that the issue of whether a PRP may seek to recover under §107 had not been expressly addressed in the Fifth Circuit, the district court examined the phrase “any other person” in §107(a)(4)(B) and concluded that the plain language of the phrase when read in light of the statute as a whole, did not support Aviall’s position. The court stated that Aviall’s interpretation of §107 would “render key provisions of §113(f) superfluous, insignificant or devoid of operative effect, violating a cardinal principal of statutory construction.” Thus, the §107 (a)(4)(B) phrase “any other persons” does not include PRPs, an interpretation supported by other, but not all, circuit courts before and after the Supreme Court’s decision in Cooper. Additionally, the district court also determined that there is no implied right to contribution under §107 or federal common law. The court noted that §113 would be rendered superfluous if a right to contribution existed in §107. With that the court granted Cooper Industries’ motion for summary judgment and dismissed both of Aviall’s federal claims. For a copy of the decision, please contact Mark Stevens at 215-732-3255.
Persons who conduct a voluntary clean-up have no implied right of contribution under CERCLA §107, Third Ciruit Court of Appeals Rules
September 8, 2006 — In DuPont v. U.S., No. 04-2096, slip op. (3rd. Cir. Aug. 29, 2006) the Third Circuit Court of Appeals held that CERCLA §107 has no implied right of contribution. The holding is consistent with its holdings prior to and after Cooper Industries v. Aviall Services Inc., 543 U.S. 157 (2004). See New Castle County v. Halliburton NUS Corp., 111 F.3d 1116 (3d Cir. 1997) and Matter of Reading Co., 115 F.3d 1111 (3d Cir. 1997). The practical implication of the DuPont decision is that persons who voluntary remediate a site can not seek cost recovery or contribution from a potentially responsible party under CERCLA in a third circuit court. That person must pursue their claims under a state statute or under common law. The text of DuPont v. U.S. is available at www.ca3.uscourts.gov/opinarch/042096p.pdf. Since Cooper, the federal circuits remain split on the issue of whether a person who voluntary remediates a site has an implied right of contribution under CERCLA §107. The Second and the Eighth Circuits concluded that potentially responsible parties may pursue CERCLA §107 cost recovery actions. See e.g., Consolidated Edison Co. of New York, Inc. v. UGI Utils, 423 F.3d 90, (2d Cir. 2005), petition for cert. filed, 74 U.S.L.W. 3600 (April 14, 2006); Atlantic Research Corp. v. U.S., No. 05-3152 (8th Cir. 2006). In other circuits, federal district courts agreed with the Third Circuit in DuPont, concluding that no implied right of contribution exists. See e.g. Aviall Services Inc. v. Cooper Industries, Civil Action No. 3:97-CV-1926-D (N.D. Tex., Aug. 8, 2006); R.E. Goodson Constr. Co. Inc. v. International Paper Co., — F. Supp. 2d —, 2005 WL 2614927 (D.S.C. Oct. 13, 2005). The Supreme Court may grant certiorari in the Second Circuit Consolidated Edison case to address the issue of whether a PRP may pursue an implied right to contribution under §107(a) against another PRP. However, until the U.S. Supreme Court addresses the issue, the Third Circuit is unlikely to reverse its consistent precedent.
NJDEP Requiring Hazardous Waste Generators to Use New Federal Manifest
On September 5, 2006 the New Jersey Department of Environmental Protection will require Hazardous Waste Generators to use new Federal Manifest forms. On March 4, 2005 the United States Environmental Protection Agency (EPA) adopted significant changes to its Uniform Hazardous Waste Manifest regulations and forms used to track hazardous waste from a generator’s site to the site of its final disposition. www.nj.gov/dep/enforcement/advisories/2006-10.pdf . The new rule standardizes the content and appearance of the form and provides a complete trail of the waste’s progress from the generator to the disposal facility. Compliance requires use of the new form by September 5, 2006, completion of the new form and submission of proper copies of the new form to NJDEP, Compliance & Enforcement, Manifest Section., P.O. Box 0422, Trenton, NJ 08625-0422. The EPA website provides instruction in completing the new federal manifest form: www.epa.gov/epaoswer/hazwaste/gener/manifest/registry/man-inst.pdf.
New Jersey DEP AND BPU Announce Regional Effort to Combat Global Warning
(August 16, 2006 — New Jersey Department of Environmental Commissioner Lisa P. Jackson and New Jersey Board of Public Utilities President Jeanne M. Fox announced that New Jersey and six other states have released a set of model regulations aimed at reducing carbon dioxide (CO2) emissions from power plants. New Jersey is a participant in the Regional Greenhouse Gas Initiative, a cooperative effort by Northeastern states to reduce carbon dioxide emissions - a greenhouse gas that causes global warming. The regulations establish a mandatory cap-and-trade program to reduce CO2 emissions from power plants, the first such program of its kind in U.S. history. The unique program relies on a market-based approach to curb power plant emissions, while at the same time promoting energy efficiency. In December 2005, the governors of seven states (New Jersey, New York, Delaware, Connecticut, New Hampshire, Vermont and Maine) reached an agreement outlining the key components of a program to address global warming. The agreement established under RGGI specified that the states would work to create draft regulations, which would be subject to public meetings and a 60-day comment period. The model set of regulations reflects and incorporates many of the comments received. New Jersey will use the model rule as a starting point for writing its own regulations to implement the program. Under the plan, regional CO2 emissions from power plants will be capped at 121 million tons per year beginning in 2009 through 2015 (a level approximately equal to 1990 emissions), and will be reduced to 10 percent below this level by 2019. The cap-and-trade program established under the model rules sets limits on power plant emissions across the region, but does not restrict the emissions of any single power plant. A power plant must hold an emissions credit, known as an "allowance," to cover each ton of its emissions. It can purchase more allowances to cover more emissions, but since the number of allowances is fixed, there are fewer allowances remaining to cover other plants' emissions. As a result, emissions from plants across the entire region cannot exceed the regional cap. The program outlined in the model regulations also allows power companies to meet some reduction requirements through the use of offset credits, which represent approved emissions reductions achieved outside the electric sector. Examples of offset credits include energy efficiency measures to reduce natural gas consumption in the building sector and the capture of methane from landfills. The RGGI plan also provides that at least 25 percent of the emissions allowances will be used to benefit energy consumers. Under this mechanism, electric generators would purchase these allowances, and the funds generated would be used to support additional energy efficiency, clean energy technology investments and consumer rebates to protect low-income consumers. New Jersey has stated its intention to dedicate a significantly larger portion of allowances to support consumer benefits.
Pennsylvania DEP Accepting Applications for Alternative Fuels Incentive Grants
August 14, 2006 — The Department of Environmental Protection announced that it is now accepting project applications for the Alternative Fuels Incentive Grant (AFIG) Program, which finances the production and use of clean-burning fuels in Pennsylvania. AFIG will fund projects that increase the production and use of biodiesel and ethanol, including B20 (a blend of 20 percent biodiesel with 80 percent diesel fuel) and E85 (a blend of 85 percent ethanol with 15 percent gasoline). Pennsylvania is particularly interested in the production of biodiesel and ethanol for use as a transportation fuel. For the first time, AFIG is offering incentives to Pennsylvania producers of biodiesel and ethanol: 5 cents a gallon to Pennsylvania producers of biodiesel or ethanol, up to 12.5 million gallons in a 12-month period. “Priority will be given to projects that create jobs and boost the state’s economy by bringing new or expanded fuel production facilities to the Commonwealth,” DEP Secretary Kathleen A. McGinty said. To stimulate the use of biodiesel and ethanol, school districts, transit authorities, local government agencies and nonprofit organizations are eligible for grants to buy down the added cost to use these fuels. For this grant round, AFIG will cover 100 percent of the added costs to eligible applicants who purchase B20 or E85 for use in their fleets. Since the inception of the AFIG program in 1992, DEP has awarded $28.7 million for 984 projects in more than 50 counties. AFIG investments have leveraged more than $78 million from public and private fleet operators, fuel providers and the federal government. The AFIG program is one of a number of policy and financial approaches that Pennsylvania has implemented promote advanced energy projects in the state. The state is home to the East Coast’s first state-of-the-art biofuels injection facility, which opened last fall with $220,000 in state aid. The plant will replace 3.2 million gallons of foreign oil with domestically produced biodiesel and keep at home $6 million worth of energy dollars by reducing the state’s need to purchase imported fuels. The deadline for submitting an AFIG grant application to DEP is 4 p.m. Oct. 2. Project costs cannot be incurred before the submittal of an application during the open opportunity. AFIG is a competitive program and an application may fail to receive funding or may be determined unacceptable due to application inadequacies.
EPA issues guidelines on the federal underground storage tank program.
August 11, 2006 -- EPA has begun the process of issuing the first major changes to the federal underground storage tank program in years, based on the mandates contained in the Energy Policy Act of 2005. Gas station owners and other owner/operators of underground storage tanks will be affected by the resulting changes to the federal and state programs, including new inspection, training and delivery requirements. States must adopt the guidelines in order to receive funds from the federal Leaking Underground Storage Tank trust fund. EPA issued guidance on the fuel delivery prohibition on August 7, 2006, the full text of which is found here, www.epa.gov/oust/fedlaws/Delivery Prohibition_080706.pdf . Comments on draft guidance on secondary containment, financial responsibility and certification of installers closed on July 8. Draft guidance on tank inspections is expected in the coming month. For more information on EPA’s implementation of the Energy Policy Act provisions, see www.epa.gov/oust/Energy Policy Act Update 3-06.pdf. For the entire text of the Energy Policy Act of 2005, click here: www.epa.gov/oust/fedlaws/publ_109-058.pdf.
Companies to Pay EPA $19 Million for Cleanup of New Jersey Sites
August 9, 2006 – The Department of Justice and the U.S. Environmental Protection Agency (EPA) announced that they have reached separate agreements with NCH Corporation (NCH) and FMC Corporation (FMC) to resolve claims against them relating to the costs of cleanup at the Higgins Farm and Higgins Disposal Superfund sites in Somerset County, N.J. Both companies have agreed to reimburse the federal government for costs incurred cleaning up the contamination found in the soil and ground water at the sites. As a part of these settlements, NCH will take over operating the ground water treatment plant that EPA built at the Higgins Farm site, saving the government approximately $12 million in future costs. NCH has also agreed to pay EPA more than $2 million to cover past cleanup costs at both sites. FMC has agreed to pay EPA almost $17 million, including $14.5 million for EPA’s cleanup costs at Higgins Farm. Under an earlier agreement with EPA entered in 2004, FMC constructed and began operating a ground water treatment plant at the Higgins Disposal site. The Department of Energy is also paying more than $9 million to cover past and future cleanup costs at both sites. The Higgins Farm Superfund site is located in a rural area along Route 518 in Franklin Township. The site is approximately 75 acres in size and is currently operated as a cattle farm. In March 1989, EPA placed the Higgins Farm site on the National Priorities List (NPL) of the country’s most contaminated sites. The Higgins Disposal Superfund site is located on a 37.6-acre parcel on Laurel Avenue in Franklin Township. From the 1950s to 1985, the site owner operated a waste disposal business including a landfill and waste transfer station. The owner’s family currently maintains a residence on the site, an equestrian facility (Hasty Acres Riding Club) and a truck repair shop. In August 1990, EPA placed the Higgins Disposal site on the NPL. The Department of Justice lodged both consent decrees today in the U.S. District Court for the District of New Jersey. The consent decrees will be subject to a 30-day public comment period and subsequent judicial approval.
Delaware law broadens DNREC’s ability to recover costs of cleanup
July 31, 2006 — Legislation signed into law on July 6, 2006 by Delaware’s Governor Minner allows state regulators to sue for cost recovery in any court of competent jurisdiction, without holding an administrative hearing to decide issues challenging the Delaware Department of Natural Resources & Environmental Control’s (“DNREC’s”) billing. Prior to this law, DNREC could only recover costs by filing an action in the Superior Court, and only after an administrative hearing on the billing. The new legislation also broadens the testimony permitted at an administrative hearing to include testimony related to the finding of the violation. For more information see Delaware SB 89.
Environmental Assessors Potentially Liable to Future Property Owners from Phase I Environmental Audit
July 31, 2006 — The District Court for the District of New Jersey the Court refused to grant an environmental assessors summary judgment motion seeking to dismiss an action by fifteen homeowners who claimed they were damaged when they bought property that, unbeknownst to them contained lead, arsenic and DDT in the recent case of Bonnieview Homeowners Ass’n, LLC v. Woodmont Builders, LLC. In Bonnieview, the Township of Montville bought a 131 acre tract of land formerly used as an apple orchard as part of an open space preservation initiative. During its purchase of the land, the Township commissioned Post, Buckley, Schuh, & Jemigan, Inc., (“PBS&J”) to conduct a Phase I Environmental Audit. In PBS&J’s report it noted three areas of concern, but did not give any indication that lead, arsenic and DDT could be present as a result of the property’s use as an orchard. As part of the Township’s purchase of the property, it agreed to sell approximately 30 acres of the site to Woodmont Builders, LLC (“Woodmont”) to be turned into a twenty five unit housing development. Woodmont began construction of a planned subdivision on its section of the property. After construction began and several units were sold, additional environmental testing revealed the presence of unsafe levels of lead, arsenic and DDT attributed to the land’s use as an orchard. The discovery of contamination lead to a variety of legal actions, including the homeowners’ suit against PBS&J for failing to identify that the property could be contaminated with these hazardous substances in its Phase I Environmental Assessment. PBS&J denied it was liable to the individual homeowners, and filed a summary judgment motion seeking to dismiss the complaint on the grounds that it owed the homeowners no duty of care. PBS&J relied upon the fact that the Phase I Report stated it was for the exclusive use of the County of Morris and the Township, that it was never told the land would be developed for housing, and that the Phase I Assessment had a stated 180-day maxim useful life (and the sale to the homeowners occurred after the useful life). The court held that it was foreseeable that entities other than the county and Township would rely on the report, based upon the purpose of the Phase I Report to “determine if current or past land use practices have adversely impacted the site.” The Court dismissed PBS&J’s contention that it was never told and was unaware that a residential development would occur on the property by noting that it was “not unreasonable to anticipate that at least some of the property would be devoted to residential use.” In rejecting PBS&J’s summary judgment motion, the Court noted that the 180-day limitation on the reliability of the Report was created to protect against new contamination, and as the contamination the Plaintiffs complained of was old, this was not a bar to recovery. For a copy of the decision issued July 11, 2006, click here: lawlibrary.rutgers.edu/fed/html/ca03-4317-2.html.
Third Circuit overrules determination that 2500-foot presumption for the source of contamination from underground storage tank leaks was rebutted by expert evidence.
July 31, 2006 — The Court of Appeals for the Third Circuit reversed the Western District of Pennsylvania’s grant of summary judgment for Chico, in Cario Partnership v. Chico Enterprises Inc., (click here for the link). Chico was the owner of a service station that was struck by a car, causing a gasoline leak that allegedly contaminated Cario’s adjacent property. Under the Pennsylvania Storage Tank Act, the owner of an underground storage tank “without proof of fault, negligence or causation”1 will be presumed liable for pollution within 2,500 feet of the tank. The 2500-foot presumption provision of the Storage Tank Act is rebuttable if “the owner or operator affirmatively prove[s] by clear and convincing evidence … [that] the owner or operator did not contribute to the damages, contamination or pollution.”2 In the case, the lower court had granted the tank-owner Chico’s summary judgment motion, finding that Chico had rebutted the 2500-foot presumption, based upon historic groundwater flow direction data presented by Chico indicating groundwater from Chico’s property flowed away from neighboring Cario’s property. The Third Circuit reversed, holding that Chico did not rebut the presumption by clear and convincing evidence because (1) gasoline contamination from the service station was found at one of the wells between the point of release and Cairo’s property, indicating groundwater flow towards Cairo’s property; and (2) Chico’s own expert admitted that formations under the Chico property could lead to a reverse in groundwater flow direction. In addition, the Court stated in dicta that its decision was based on the contamination of the liquid form of gasoline but that “there remains the possibility under Pennsylvania law that the fumes from the spill that drifted onto Cairo’s property were air pollution within the terms of the Storage Tank Act.”
New Jersey provides protection from Spill Act contribution suits for settling parties
July 24, 2006 — Two new provisions of New Jersey’s Spill Compensation and Control Act (the “Spill Act”), effective April 2006, may foster earlier settlement of liability with the State. The first provision provides contribution protection to a person who has settled his liability for a release of hazardous substances at a site. The second provision establishes the procedure by which the State provides notice to the public and other responsible parties of a pending release of liability. Under the new contribution protection provision, N.J.S.A. §58:10-23.11f(a)(2)(b), a person who is “in any way responsible” for the release of hazardous substances or damages to natural resources who resolves his liability to the State for cleanup and removal of hazardous substances or for loss or restoration to natural resources can protect himself from contribution actions if he either receives a no further action letter (“NFA”) from the State; or enters into a administrative or judicially approved settlement with the State, so long as the contribution claims are addressed in the settlement or NFA. Non-settling parties are also entitled to a reduction of their potential liability for those based on the amount in the settlement agreement for the subject hazardous substance. A person who settles sooner rather than later avoids costly contribution litigation and the potential of paying more than his fair share. Remaining non-settlers are jointly and severally liable for the difference between the actual costs and the amount of all settlements, and exposed to costly contribution litigation and may ultimately end up paying more than their fair share. Finally, the new contribution notice statute, N.J.S.A. §58:10-23.11e(2), directs New Jersey Department of Environmental Protection to provide at least 30 days notice prior to entering into any settlement agreement or at least 30 days notice prior to the issuance of any NFA by publishing notice in the New Jersey Register and on the DEP website. For the text of the new provisions see, www.njleg.state.nj.us/2004/Bills/PL05/348.PDF.
Court allows CERCLA § 113(f) contribution claim despite lack of underlying enforcement action.
July 7, 2006 — According to the U.S. District Court for the Western District of Pennsylvania, the Supreme Court’s holding in Cooper Industries v. Aviall Services, Inc., 543 U.S. 157 (2004) is not a jurisdictional requirement. The Cooper holding required an underlying Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”) cost recovery action under section 42 U.S.C. § 9606 or § 9607, commonly referred to as “§106 or §107” action or settlement with the United States Environmental Protection Agency as a prerequisite to bringing a § 113 contribution action. In Beazer East, Inc. v. The Mead Corp., the court held that the Cooper v. Aviall requirements of an underlying § 106 or 107 action were not a “jurisdictional threshold” for a claim under 42 U.S.C. § 9613(f)(1), commonly known as a “§ 113(f)(1)” claim, but rather were “an element of a claim for relief”. In dismissing Mead’s claim for lack of subject matter jurisdiction, the court held that Mead had waived its right to move to dismiss the case for failure to state a claim by not raising the issue earlier. Accordingly, the court allowed Beazer East to proceed on its remaining contribution claim under § 113(f), even though there was no preexisting §106 or §107 action or settlement.
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