EPA Selects Five State Capitals For Greening America’s Capitals’ Project
By E. Lynn Grayson
On September 8, 2010, EPA announced that the Greening America's Capitals' program would provide sustainable design assistance to: Boston, MA; Jefferson City, MO; Hartford, CT; Charleston, WV; and, Little Rock, AR. Greening America's Capitals is a project of Partnerships for Sustainable Communities between EPA, HUD and DOT to help state capitals develop implementable vision of distinctive, environmentally friendly neighborhoods that incorporate green building and green infrastructure strategies.
The five state capitals were selected from a total of 38 cities that responded to a solicitation of interest by EPA in June 2010. The agency will organize teams of urban planners and landscape architects to provide direct, customized technical assistance as requested by each community.
Greening America's Capitals is not a grant program, but provides direct technical assistance to communities by working with private sector experts and leveraging partnerships, such as with HUD and DOT, to help communities consider development options. In addition to helping the selected state capitals build civic pride and a greener future, this assistance will help create models that other cities can look to in creating their own sustainable designs.
The program will assist three to five communities per year with the first projects beginning in late 2010. More information about the Greening America's Capitals' program is available at http://www.epa.gov/smartgrowth/greencapitals.htm.
National Conversation On Public Health And Chemical Exposures
By E. Lynn Grayson
The National Conversation on Public Health and Chemical Exposures is a collaborative project between the Centers for Disease Control (CDC) and the Agency for Toxic Substances and Disease Registry (ATSDR). The project's goal is to develop an action agenda with clear, achievable recommendations that can help government agencies and other organizations strengthen their efforts to protect the public from harmful chemical exposures.
The project's work is divided into six groups formed to research and make recommendations on cross-cutting public health and chemical exposure issues:
Policies and Practices
Education and Communication
Draft work group reports now are available at http://www.resolv.org/nationalconversation/ and comments will be accepted through September 20, 2010.
RESOLVE, a non-profit organization dedicated to advancing effective use of consensus building in public decision making, is collecting all comments. The work groups will consider all comments submitted in finalizing their reports. The National Conversation's Leadership Council will use the work group reports in developing the action agenda scheduled to be available for public review and comments in December, 2010.
September 21, 2010 Webinar—How Low Can the Regulators Make You Go: The Dilemma Posed by Cleanup Standards that are Lower Than "Background"
By Steven M. Siros
Steven Siros will be one of two presenters at a September 21, 2010 webinar titled: How Low Can the Regulators Make You Go: The Dilemma Posed by Cleanup Standards that are Lower Than "Background". When remediating contaminated properties, responsible parties are often faced with the dilemma of deciding how clean is clean. For some chemicals, the new, conservative, risk-based standards result in clean-up criteria that can actually be lower than "background" levels. As a result, sometimes responsible parties are expected to clean up contamination that may not have been caused by industrial operations on a property. This continual lowering of the regulatory clean-up floor has significant ramifications in a variety of contexts, including property transactions, site remediation, toxic tort cases and natural resource damage assessments. The webinar will focus on three specific contaminants: dioxin, arsenic and TCE, each of which has been the subject of recent regulatory actions to lower the applicable cleanup/screening level. Examples of what happens when regulators try to force parties to clean up contaminated sites to below background and practical solutions will be discussed. The webinar is September 21, 2010 from 12:00 to 1:30 CST. To sign-up for the webinar, click here.
A Book Review: Power Hungry by Robert Bruce
By E. Lynn Grayson
Recently published, this book takes a critical look at whether or not "green" forms of energy can really work for this country. Mr. Bruce takes aim at those promoting greener energy by disclosing the environmental costs of such "green" energy and disclosing that reliance on such forms of energy are impossible long term. Armed with energy-related facts and figures as well as some basic math and physics skills, he examines the U.S. energy needs and concludes for a host of reasons that wind and solar options cannot reliably provide what is needed. He methodically details how the U.S. can lead a global transition to a cleaner, lower-carbon future by embracing the fuels of the future, a future that he summarizes as N2N: natural gas to nuclear. According to Mr. Bruce, N2N are fuels of the future because they have high power density, are relatively low in cost and can provide enormous quantities of energy we need. In addition, the same produce lower carbon dioxide emissions than oil or gas. His theory of N2N is to use natural gas now and in the near term as we transition to nuclear power over the long term.
Failure to File Compulsory Counterclaim Dooms U.S. EPA’s Cost-Recovery Action
By Steven M. Siros
In what may be the first case of its kind in the United States, a District Court in California has dismissed U.S. EPA's cost recovery claims with respect to a Superfund Site due to the failure of the Department of Defense ("DoD") to assert counterclaims in a prior litigation matter relating to the same general contamination. See City of Colton v. American Promotional Events, Inc. Federal Rule of Civil Procedure 13(a) requires that a party must assert as a counterclaim any claim that arises out of the same transaction or occurrence that is the subject matter of the opposing party's claim and that does not require adding any party over whom the court cannot acquire jurisdiction. The purpose of the rule is to bar any party that fails to assert a compulsory counterclaim in one action from instituting a second action in which the counterclaim is the basis of the complaint. The wrinkle in the Colton case, however, or at least the argument advanced by DOJ, was that DoD was the party in the first case and U.S. EPA was the party in the second case. Therefore, DOJ argued that Rule 13(a) did not apply. The Court rejected this argument, noting that CERCLA does not distinguish between different agencies of the United States. The Court concluded that the failure of DoD to assert counterclaims against the other defendants was fatal to U.S. EPA's ability to file a cost-recovery claim arising out of the same general contamination. Although this decision is likely to be appealed, in the interim, it may provide parties with a defensive sword to seek dismissal of U.S. EPA claims where other instrumentalities of the United States were involved in prior litigation with respect to the same general contamination. It also provides a sobering reminder as to the need to assert counterclaims at the earliest possible opportunity.
Carbon Disclosure Project’s 2010 Water Disclosure
By E. Lynn Grayson
The Carbon Disclosure Project (CDP) has issued its first water-related information request to 302 of the world's largest companies in sectors that are water intensive or face particular water risks. Since 2003, the CDP has issued carbon and climate change information requests on behalf of investors. With the launch of the CDP Water Disclosure in late 2009, the organization acknowledged that much of the impact of climate change will be manifested through increasingly scarce water resources and that these possible water risks needed to be better understood by investors.
Water is the world's most critical resource and global water scarcity is an emerging risk that all companies must fully evaluate. It is often said that what is measured matters. For Ceres, CDP and their supporting financial institutions, water risks should be not only measured but disclosed.
The CDP 2010 Water Disclosure is discussed in greater detail in a recently published article titled Managing Water Risks: Carbon Disclosure Project's Water Disclosure. 2010 Emerging Issues 5256 (LexisNexis Aug. 2010).
July 2010 Update: Climate Change
By Gabrielle Sigel, Jennifer L. Cassel, and Rachel C. Loftspring
Gabrielle Sigel, Jennifer L. Cassel, and Rachel C. Loftspring, attorneys in Jenner & Block's Environmental, Energy & Natural Resources Law Practice and Litigation Department, recently posted to Jenner & Block's Climate Change Update Resource Center their July 2010 Update of Climate Change developments. Of note in the July update are discussions of EPA's proposed GHG reporting settlements in six industry lawsuits and a plan for a commercial smart grid in Chicago. Click here to read the July 2010 Climate Change Update.
EPA Proposes Modifications to TSCA's Inventory Update Reporting Rule
By James A. Vroman
On August 11, 2010, the U.S. EPA announced that it was publishing in the Federal Register proposed modifications to the Toxic Substance Control Act's "Inventory Update Reporting" rule. See, U.S. EPA's Press Release. TSCA's IUR rule, promulgated under TSCA's Section 8(a), authorizes the Agency to require manufacturers and importers of chemicals to submit to the Agency information on the manufacture, processing, production and use of chemicals on the TSCA Chemical Substance Inventory. The U.S. EPA uses the submitted information to assess and evaluate the risks the chemical poses to human health and the environment. The information the chemical manufacturer or importer submits under the IUR rule to the Agency is available to the public unless the manufacturer or importer classifies the information as "Confidential Business Information" (CBI). Much of the information that has been submitted to the U.S. EPA has been classified as CBI.
The proposed modifications to the IUR rule would require manufacturers and importers to submit the IUR rule information electronically, to provide data to the Agency on a chemical's use and processing not previously required, and to revise the standards under which a manufacturer or importer may classify the submitted information as CBI. See, Proposed Rule. The proposed modifications also include other changes to the IUR rule. The deadline to submit comments on the proposed modifications to the IUR rule is October 12, 2010.
North America Commission For Environmental Cooperation
By E. Lynn Grayson
Meeting in Guanajuato, Mexico this week, the Commission for Environmental Cooperation agreed upon its environmental priorities for North America including:
Building Strong Environmental Institutions and Legal Structures
Combating Climate Change by Limiting Pollutants
Improving Air Quality
Expanding Access to Clean Water
Reducing Exposure to Toxic Chemicals
Cleaning Up E-Waste
EPA Administrator Lisa Jackson addressed this group of environmental leaders from the U.S., Canada and Mexico noting that these international priorities echo those she announced earlier this year for EPA. EPA's aim is to promote citizen engagement, improve public health and increase government accountability on environmental enforcement. The Commission's focus is to foster conservation, protection and enhancement of the North America environment in the context of increasing economic, trade and social links among Canada, Mexico and the U.S.
Founded in 1994, the Commission was created by the North American Agreement on Environmental Cooperation under the North America Free Trade Agreement. The Commission acts to mitigate the impacts of cross-border commerce on the environment.
More information about the Commission and its work can be found at http://www.cec.org/.
CERCLA Plaintiff’s Failure to Establish Past Costs Liability Precluded Declaratory Judgment as to Future Costs Liability
By Rachel C. Loftspring
In a case of first impression, the Ninth Circuit ruled on August 2, 2010, that a plaintiff’s failure to establish defendants' liability for plaintiff's past costs, because they were not incurred consistent with the National Contingency Plan, “necessarily dooms” its attempt to obtain a declaratory judgment as to liability for future costs. City of Colton v. American Promotional Events, Inc., D.C. No. CV-05-01479-JFW.
New Nanotechnology Development Guidance
By James A. Vroman
The Massachusetts Office of Technical Assistance ("OTA") has recently posted its Guidance Document "Nanotechnology - Considerations for Safe Development." The OTA, in an effort to encourage the development of new technologies and to promote innovation and entrepreneurship, recently posted this guidance on its website. The OTA recognizes the vast innovative, economic and employment opportunities nanotechnology offers. At the same time, the Office acknowledges that the development, manufacture, distribution and disposal of nanoparticles may create substantial human health and environmental risks. Accordingly, the guidance offers those who are engaged, or about to be engaged, in the development, manufacture or distribution of nanoparticles, or products that will contain nanoparticles, advice and directions on such matters as risk reduction plans, worker safety programs, "preventive materials selection and process design," use and post-use disposition as well as on a number of other issues and considerations. The guidance also identifies a number of useful and informative resource materials on these issues.
EPA Proposes To Extend SPCC Compliance Date
By E. Lynn Grayson
On August 3, 2010, EPA published notice proposing to extend the compliance date for certain facilities subject to the Spill Prevention Control and Countermeasures (SPCC) rule. The proposed SPCC rule amendment extends the compliance date in Section 112.3 by one year from November 10, 2010 to November 10, 2011 for owners or operators of certain SPCC regulated facilities that must prepare or amend an SPCC plan.
EPA is proposing to maintain the current compliance date for drilling, production and workover facilities that are offshore or that have an offshore component, or for facilities required to have a Facility Response Plan. EPA also is proposing further compliance date delays for certain facilities with milk containers, associated piping and appurtenances to allow the Agency time to take final action to exempt these containers from SPCC requirements.
A facility owner or operator in operation before August 16, 2002 must continue to maintain an existing plan. A facility owner or operator who wants to take advantage of the 2002, 2006, 2008, and 2009 regulatory changes may do so, but will need to modify the existing plan accordingly. Additionally, an owner or operator may need to amend the plan prior to the new compliance date to address facility modifications for which more stringent requirements apply.
The public has the opportunity to comment on this proposed rule until August 18, 2010. Additional information about the proposed rule including a fact sheet can be found at http://www.epa.gov/oem/content/spcc/compliance_dates.htm.
Owner During Cleanup is the "Current Owner" for Purposes of CERCLA, 9th Circuit Says
By Rachel Loftspring
On July 22, 2010, the U.S. Court of Appeals for the 9th Circuit, on a question of first impression, considered which of two potentially responsible parties--one that owned a property when a recovery claim accrued and the other that owned that same property when a suit was filed--constitutes the “current owner” for the purposes of determining liability under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). See 42 U.S.C. § 9607(a)(1). The Court held that the owner of a property when cleanup costs are incurred is the “current owner,” affirming the lower court’s ruling. See California v. Hearthside Residential Corp., 9th Cir., No. 09-55389, 7/22/10.
Fourth Circuit Says No to Interstate Nuisance Claim
By Steven M. Siros
On July 26, 2010, the Fourth Circuit overturned a January 2009 district court decision that had found that emissions from 11 coal-fired power plants located in Alabama, Kentucky and Tennessee that were allegedly impacting North Carolina constituted a public nuisance. North Carolina v. Tennessee Valley Authority, No. 06-2131 (4th Cir., July 26, 2010). In January 2009, the U.S. District Court for the Western District of North Carolina agreed that emissions from these plants constituted a public nuisance and ordered the Tennessee Valley Authority ("TVA"), which owned and operated these plants, to install pollution control technology that was estimated to cost in excess of $1 billion. (Click here to view the district court decision.) The district court's ruling was somewhat surprising in that these plants were all properly permitted facilities and there were no allegations that these plants were operating in contravention of any applicable permit, rule or regulation.
Limits to CERCLA'S Owner/Operator Liability
By James A. Vroman
The United States District Court for the Western District of Washington has ruled that a party cannot be liable under CERCLA as an "owner/operator" for the remediation of impacted soil and water if the impacted soil and water is not located within the party's facility, and is entirely outside of the property limits of the party's facility, even though the contaminants that impacted the soil and groundwater may have originated at the party's facility and migrated off-site to impact down gradient locations. See, United States v. Washington State Dept. of Transportation, Case NO. 08-5722RJB.
The United States brought a CERCLA action against the Washington State Department of Transportation (the "DOT") contending that coal tar from the DOT's Tacoma Spur Property had migrated and contaminated the Thea Foss and Wheeler Osgood Waterways (the "Waterways"). The United States sought to impose CERCLA liability on the DOT as an owner/operator and compel the DOT to remediate the Waterways. Although the DOT did not own or operate the Waterways, the Tacoma Spur Property and the Waterways were both located within the large Commencement Bay/Nearshore Tidelands Superfund Site. The United States contended that the entire Superfund Site was one "facility" and, therefore, the DOT was an "owner" of the "facility," as that term is defined in CERCLA.
The Court disagreed with this contention. It found that the Superfund Site was comprised of a number of different properties each with a different owner. The different owners had no common purpose and did not conduct common activities on their properties. Therefore, the Court could not accept the United States' argument that the entire Site was one facility. Moreover, the Court concluded that the Waterways and the Tacoma Spur Property "are reasonably divided into multiple parts or functional units." Accordingly, the Court found that they were separate "facilities" under CERCLA and the DOT was not the owner/operator of the Waterways facility and could not be liable under CERCLA for the remediation of the Waterways as an "owner/operator" Potentially Responsible Party ("PRP"), even if the coal tar impacting the Waterways had migrated from the Tacoma Spur Property.