January 22, 2010
The promulgation of a proposed rule regulating coal ash has been delayed amid numerous meetings between industry representatives, environmental groups and federal agencies. On October 16, 2009, the Environmental Protection Agency (“EPA”) sent its proposed coal ash rule to the Office of Management and Budget (“OMB”). EPA Administrator Lisa Jackson had promised that a proposed coal ash rule would be published by the end of 2009. The rule may regulate coal ash as a “hazardous waste” under the Resource Conservation and Recovery Act (“RCRA”). However, the “noteworthy” number of meetings between industry groups, environmental groups and OMB, and the over 2,300 pages of documents OMB must review, have delayed the release of a proposed rule.
Industry representatives believe that regulating coal ash under RCRA would negatively impact companies who produce the ash as well as companies who beneficially reuse it (e.g., as structural fill or agricultural uses). Tom Addams, executive director of the American Coal Ash Association, a utility industry group, stated “[a] hazardous determination would make builders reluctant to use coal ash not because of what it may contain, but because of tort activity. If litigation was filed on a national basis, it would be mind-boggling to see what the defense costs were.” Industry representatives also believe that the toxic materials in coal ash are not in high enough concentrations for the ash to be regulated as “hazardous.”
Environmental groups want coal ash to be regulated as a “hazardous waste” because it contains mercury, lead, and other potentially toxic constituents. Representatives of these groups are concerned that industry may influence the outcome of the proposed rule.
The coal ash proposal could be published in the coming weeks.
More information about the meetings between industry, environmental groups and OMB is available at the OMB website.
August 18, 2009
On Thursday August 13, 2009, Judge Deborah A. Batts of the United States District Court in Manhattan ruled that certain provisions of the Bigger Better Bottle Bill (“Bill”) could be implemented immediately. This ruling followed the issuance of a preliminary injunction in May that halted enactment of the entire Bill until April 1, 2010. Judge Batts’ ruling determined that:
- NY State may begin collecting 80% of the unclaimed deposits on all non-water bottled beverages from the bottling industry;
- The beverage industry is required to increase the handling fees paid to redemption centers for taking empty bottles;
- All provisions involving “bottled water” cannot go into effect until at least October 22, 2009 when a follow up hearing will be held; and
- No decision was rendered on the New York-specific UPC bar code.
The Bill, which was passed in April, was challenged in May when Nestle, the Polar Corp., and the International Bottled Water Association (collectively, the “water companies”) filed suit in the U.S. District Court for the Southern District of New York. The water companies claimed that the Bill was unconstitutional because it violated the Dormant Commerce Clause, the Equal Protection Clause, and Substantive Due Process of the U.S. Constitution. Judge Thomas P. Griesa of the United States District Court in Manhattan ruled in favor of the water companies when he determined that certain provisions of the Bill were unconstitutional. In particular, the requirement that a NY State-specific UPC be placed on all bottles sold in the state was found unconstitutional due to infringement on interstate commerce. For more information on Judge Griesa’s reasons for issuing the preliminary injunction see our prior post on that ruling.
(more…)
August 11, 2009
Almost thirty years after Congress instructed EPA to require facility owners and operators to set aside funds for the cleanup of property that may be contaminated by hazardous substances, a federal court in California has held EPA may take additional time to draft and issue the regulations. The court held that while Congress required EPA to issue such regulations, it granted EPA some discretion in when to do so. EPA has stated that it intends to require financial assurance for hardrock mining facilities first, and will also assess the need to regulate hazardous waste generators, hazardous waste recyclers, metal finishers, wood treatment facilities, and chemical manufacturers.
The regulations at issue are required under the federal Superfund law, the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), passed in 1980. The statute is commonly said to have been motivated by the notorious hazardous waste contamination discovered buried at Love Canal, NY. Section 108 of CERCLA requires EPA to issue financial assurance requirements for certain types of facilities, based on the risk of injury from hazardous substances in operations at those facilities. The regulations, once issued, would require the operator of a covered facility to set aside funds or otherwise make funds available for a possible future cleanup of hazardous substances at the property. Without such funds, costly cleanups may force potentially responsible parties into bankruptcy leaving taxpayers with the bill, or lengthy litigation may ensue over the allocation of costs. EPA was first required to publish a notice of those classes of facilities which presented the “highest level of risk of injury” by December 11, 1980. CERCLA § 108(b)(1).
The December 1980 deadline passed, without EPA publishing the required notice. The statutory requirement languished, until in recent years it received renewed attention. EPA was sued in federal court in 2008, on the theory that EPA had failed to perform a non-discretionary duty under CERCLA. The suit was brought under to CERCLA’s citizen suit provision, which allows a private litigant to force non-discretionary agency action. In February 2009, the Northern District of California held in Sierra Club v. Johnson (N.D. Cal. No. C 08-01409) (“Johnson“), that EPA had a mandatory duty to publish classes of facilities which presented the greatest risk of injury. In July, 2009, EPA published a notice these classes of facilities in the Federal Register, pursuant to the court’s order. In its notice, the agency determined that it would promulgate the first financial assurance requirements for hardrock mining facilities, based on the extent of contamination from such facilities, and the high costs of cleanup.
EPA did not limit its inquiry to hardrock mining; the notice also stated that EPA will examine the need for financial assurance at the following types of facilities: “hazardous waste generators, hazardous waste recyclers, metal finishers, wood treatment facilities, and chemical manufacturers.” 74 Fed. Reg. 37,219. EPA states that it intends to publish a notice of this “second wave” of types of facilities by December, 2009. Id.
However, the Northern District of California held that EPA is under no date-certain deadline to issue the financial assurance requirements. Instead, the court held, “that although Section 108(b) requires EPA to promulgate financial responsibility regulations and incrementally impose such requirements, Section 108(b) provides EPA with discretion as to when to promulgate such regulations. Unlike the duty to publish notice of classes, Section 108(b) does not include a date-certain deadline for the promulgation of financial responsibility regulations …” Johnson, Order, at 4-5 (Aug. 5, 2009). In so doing, the court rejected “a bright line rule that only duties with date-certain deadlines are non-discretionary for the purpose of citizen suits under CERCLA,” and instead looked to legislative history to help determine whether EPA’s duty to promulgate regulations by a particular date was non-discretionary. Id. at 5.
To maintain a claim that EPA has “unreasonably delayed” its duties under CERCLA, the court held that plaintiffs may continue to press their claims under another statute, the Administrative Procedure Act (APA), but must do so in another court. The court stated, “plaintiffs may bring an APA claim in the Court of Appeals for the D.C. Circuit alleging EPA unreasonably delayed in promulgating the financial responsibility regulations required under Section 108(b).” Id. at 6. Unless and until such a litigation is brought and decided, the timeline for financial assurance requirements under CERCLA will remain unclear.
EPA that although Section 108(b) requires EPA to promulgate
financial responsibility regulations and incrementally impose such requirements, Section 108(b)
August 10, 2009
A recent opinion from the U.S. District Court in the Northern District of Oklahoma may limit the recovery of natural resource damages (NRD) under the federal Superfund law.
In addition to the cleanup of Superfund sites, potentially responsible parties under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) may also be held liable for harm to natural resources caused by the release of hazardous substances, known as natural resource damages (NRD). Natural resources as defined by the statute include “land, fish, wildlife, biota, air, water, ground water, drinking water supplies, and other such resources belonging to, managed by, held in trust by, appertaining to, or otherwise controlled by the United States … any State or local government, any foreign government, [or] any Indian [T]ribe.” 42 U.S.C. § 9601(16). These governmental “trustees” are responsible for pursuing NRD claims.
In State of Oklahoma v. Tyson Foods, Inc., the Oklahoma Attorney General sued several Arkansas poultry farms under CERCLA for the contamination of the Illinois River watershed. On July 22, the U.S. District Court for the Northern District of Oklahoma rejected these NRD claims since the state had not joined the Cherokee Tribe, a trustee with jurisdiction over parts of the river. The court held that the Tribe was an indispensable party to the lawsuit, and without the participation of the Tribe or a clear division of the amount of natural resources held by each trustee, it dismissed the NRD claims under Rule 19 of the Federal Rules of Civil Procedure (“Required Joinder of Parties”). 2009 WL 2176337 (N.D. Okla. 2009).
The Tyson Foods decision conflicts with others that have indicated a single trustee may bring CERCLA claims for the full amount of natural resource damages, even in the absence of other affected trustees. See, e.g., United States v. Asarco, Inc., 471 F.Supp.2d 1063 (D. Idaho 2005). If Tyson Foods stands, the decision could render recovery of NRD under CERCLA more difficult, especially where a governmental PRP also happens to be a trustee of the affected resources.
June 8, 2009
On Friday, May 29, 2009, Judge Thomas P. Griesa of US District Court in Manhattan issued a preliminary injunction, halting the implementation of the “Bigger Better Bottle Bill” (the “Bill”) until April 1, 2010. The Bill represents the expansion of the current Bottle Bill, known as the New York State Returnable Container Act, N.Y. Envtl. Cons. L. 27-1000 (1982). Originally enacted in 1982, the Bottle Bill combats the problem of beverage can or bottle litter, by requiring containers—aluminum cans, glass, and plastic bottles for soft drinks, mineral and soda water, as well as beer and liquor—to carry a five cent deposit. Retailers, distributors, redemption centers, and bottlers are required to collect and redeem the five cent deposit on such beverage containers.
The Bill sought to expand the definition of “container” by including all bottles of water sold in the state. Governor David A. Paterson’s office introduced the Bill to the state Legislature in January 2009, with a definition of “water” that included drinks made with sugar, such as juices, iced teas, or sports drinks. The state legislature was hesitant to accept this definition and after negotiations, the Bill redefined “water” to include “any beverage identified through the use of letters, words or symbols on its product label as a type of water, including any flavored water or nutritionally enhanced water, provided, however, that ‘water’ does not include any beverage identified as a type of water which a sugar has been added.” N.Y. Envtl. Cons. L. § 27-1012.10.
Some New Yorkers found the distinction between water with sugar added and water with no sugar added particularly odd since last year Governor Paterson’s office introduced legislation to place an “obesity tax” on all drinks made with sugar. The “obesity tax” legislation was dropped shortly after it was introduced but the distinction between types of water was passed along with the Bill in April. Judith Enck, Governor Paterson’s Deputy Secretary for the Environment, recently answered questions about the distinction, stating that “[t]he Legislature only wanted to do water” and that “this was a necessary compromise to get the bill through.”
(more…)
|
|
| |
|
