Environmental Law ReSource : Environmental Lawyer & Attorney : Reed Smith Law Firm : Climate Change, Sustainability

This post was written by Lawrence Demase, Douglas Everette, Robert Frank, Arnold Grant, Todd Maiden, Jennifer Smokelin, Robert Vilter and David Wagner.

As we look forward to 2012, the environmental and energy attorneys at Reed Smith will be on top of a range of issues, and offer the following analysis of what we view, in no particular order, to be 10 key issues likely to affect you and your business in 2012. This post is based on input and analysis from Reed Smith attorneys across the United States. The 10 issues to watch are:

1. Offshore wind power generation
2. Renewable energy incentive programs
3. Hydraulic fracturing regulation
4. Aggregation
5. Greenhouse gas litigation
6. California's cap-and-trade program
7. California's Green Chemistry program
8. New mercury standards for coal and oil-burning power plants
9. Fallout from CERCLA decision in Burlington Northern and Santa Fe Railway Co. v. U.S.
10. Conflict minerals and disclosure requirements

Please return to blog regularly and participate in our quarterly teleseminar to get updates and analysis on these and many other environmental and energy issues.

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On Wednesday, Reed Smith held its quarterly environmental and energy law resource teleseminar and the slides and audio are available for download. We were ambitious and discussed 10 key issues likely to affect you and your business in 2012. Our high level discussion was on the following:

1. Offshore wind power generation
2. Renewable energy incentive programs
3. Hydraulic fracturing regulation
4. Aggregation
5. Greenhouse gas litigation
6. California's cap-and-trade program
7. California's Green Chemistry program
8. New mercury standards for coal and oil-burning power plants
9. Fallout from CERCLA decision in Burlington Northern and Santa Fe Railway Co. v. U.S.
10. Conflict minerals and disclosure requirements

Be sure that we will monitor and analyze these issues and many other environmental and energy issues through the year on our blog and in future teleseminars.

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Please join us for this upcoming one-hour teleseminar. As part of our quarterly teleseminar series, the Reed Smith Energy and Natural Resources group will provide insight into the top ten environmental and energy issues to watch in 2012. This complimentary program is on Wednesday, January 25, 2012 from 12 to 1 pm ET. Please use the link below to register.

Topics will include:

• Hydraulic fracturing regulation
• Aggregation
• Greenhouse gas litigation
• California's cap-and-trade program
• Chemicals regulation (possible TSCA reform and California's Green Chemistry)
• New mercury standards for coal and oil-burning power plants
• Renewable energy incentive programs
• Offshore wind power generation
• CERCLA: Fallout from Burlington Northern and Santa Fe Railway Co. v. U.S.
• Conflict minerals and disclosure requirements

Speakers: Larry Demase (Pittsburgh), Douglas Everette (Washington D.C.), Bob Frank (Philadelphia), Arnold Grant (Chicago), Todd Maiden (San Francisco), Jennifer Smokelin (Pittsburgh), Robert Vilter (New York), and David Wagner (Pittsburgh). To read more about our speakers, please click the attorney's name.

After registration, you will be provided with the dial-in number and a link to view the presentation on the web. At the conclusion, you will have the opportunity to participate in a question-and-answer session. We look forward to you joining us!

TO REGISTER: Please, click here.

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This post was written by Larry Demase and David Wagner.

Last week, the U.S. Supreme Court let stand a ruling that CERCLA’s contribution section (Section 113(f)) provides the exclusive remedy for a liable party compelled to incur response costs under an administrative settlement. In Morrison Enterprises, LLC v. Dravo Corporation, No. 11-30, Morrison Enterprises (Morrison) filed a petition for certiorari before the U.S. Supreme Court, asserting a conflict in the Circuit Courts of Appeal and with two seminal Supreme Court decisions. Reed Smith represented Dravo Corporation in opposing the petition and the Supreme Court denied certiorari on October 3.

In the case, Morrison and the city of Hastings, Nebraska – both of which were liable under CERCLA for hazardous substances released into the groundwater – sued Dravo Corporation, a manufacturing site owner also liable under CERCLA. Morrison and the City filed suit under CERCLA Section 107 and sought to recover groundwater contamination costs related to the operation of Well D, a groundwater extraction and treatment system located downgradient of each party’s relevant source of contamination. The District Court granted Dravo Corporation’s motion for summary judgment, finding that Section 113(f) was the Appellants’ exclusive remedy. The Circuit Court affirmed, explaining that “liable parties which have been subject to Section 106 or 107 enforcement actions are still required to use Section 113.” In ruling for Dravo Corporation, the circuit court held that, because Morrison and the city of Hastings were liable parties compelled to incur response costs pursuant to an administrative or judicially approved settlement under Sections 106 or 107, they could only bring a Section 113(f) claim for contribution. See Morrison Enterprises, LLC v. Dravo Corporation, 683 F.3d 594 (8th Cir. 2011).

Dravo Corporation was represented by Reed Smith attorneys Larry Demase, Jim Martin, David Wagner and David Bird. Additional case details can be found on our blog at this post.

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This post was written by David Wagner.

On Wednesday, Reed Smith held its quarterly environmental and energy law resource teleseminar and the slides and audio are available. We discussed current or emerging issues under five general categories. The categories and discussion included:

• Legislation/Rules — We reviewed the key points and effective dates related to the New Source Performance Standards for the oil and gas industry as well as for utilities and refineries.
• Litigation — A big environmental litigation issue involving the oil and gas industry is the aggregation of air emissions from diverse sources and we discussed recent challenges to air permits involving this issue. We also discussed the U.S. Supreme Court's recent denial of certiorari in Morrison Enterprises v. Dravo Corporation and the implications on CERCLA cost recovery and contribution claims.
• Policy and Technology — On this front, our presentation focused on a recent DOE report on the need for additional disclosure, and the policy implications related to the interplay between the U.S. Environmental Protection Agency and Federal Energy Regulatory Commission.
• International Issues — Here we provided a brief preview of the upcoming COP in South Africa and the fate of the Kyoto Protocol
• State Issues — On the state level, we focused on California and summarized recent developments regarding the implementation of the California Global Warming Solutions Act (aka AB32) and California's “Green Chemistry” Initiative.
   

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This post was written by David Wagner.

As we previewed a few months ago, the U.S. Environmental Protection Agency (USEPA) recently proposed a rule to exclude CO2 streams from Resource Conservation and Recovery Act (RCRA) regulations if they meet certain conditions, including injection for the purpose of geologic sequestration into specific wells regulated under the Safe Drinking Water Act. The proposed rule, which was published on August 8, comes on top of an earlier Safe Drinking Water Act regulation finalized in December 2010 that sets requirements for geologic sequestration, including the development of a new class of injection well called Class VI, established under USEPA’s Underground Injection Control (UIC) program. The UIC Class VI requirements are designed to ensure that wells used for geologic sequestration of CO2 streams are appropriately sited, constructed, tested, monitored, and closed in a manner that ensures USDW protection.

In developing the proposed rule, USEPA determined that CO2 streams captured at power plants and industrial facilities destined for a UIC Class VI well for the purposes of geologic sequestration would be a RCRA solid waste, as it is a “discarded material” as defined in RCRA § 1004(27). In its discussion of the rule, USEPA indicated that, while there is little information available to conclude that CO2 streams would qualify as a RCRA subtitle C hazardous waste, there is the potential for some CO2 streams to meet the definition of a hazardous waste. USEPA concluded that the management of CO2 streams under the proposed conditions does not present a substantial risk to human health or the environment, and will encourage the geologic sequestration of CO2, in a safe and environmentally protective manner.

The proposed exclusion, if finalized, may apply to generators, transporters, and owners or operators of treatment, storage, and disposal facilities engaged in the management of CO2 streams that would otherwise be regulated as hazardous wastes under the RCRA subtitle C hazardous waste regulations as part of geologic sequestration activities. This includes entities in the following industries: operators of CO2 injection wells used for geologic sequestration; and certain industries identified by their North American Industry Classification System (NAICS) code: oil and gas extraction facilities (NAICS 211111); utilities (NAICS 22); transportation (NAICS 48-49); and manufacturing (NAICS 31-33).
 

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This post was written by David Wagner.

We’re in – LexisNexis has selected Reed Smith's Environmental Law Resource blog as one of the Top 50 Environmental Law & Climate Change Blogs for 2011. We were recognized as "preeminent thought leaders in the blogosphere" who "offer some of the best writing out there." LexisNexis found that our blog contains "a wealth of information for all segments of the environmental law and climate change industry, and includes timely news items, expert analysis, practice tips, frequent postings and helpful links to other sites and sources."

The 50 honorees were grouped into 10 categories and our blog was one of just 4 blogs honored under the "Litigation" category.

We’re thrilled and certainly appreciate the recognition. Even more importantly, we appreciate your interest in our blog.

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This post was written by David Wagner.

Recently, Reed Smith represented Dravo Corporation in a case captioned Morrison Enterprises, LLC v. Dravo Corporation, before the District Court for the District of Nebraska and the Eighth Circuit. Given that several significant issues were addressed in the Eighth Circuit’s decision, we address the key holdings in two different posts. This post addresses the issue of cost recovery versus contribution. A separate post discusses two issues relating to application of the statute of limitations.

The Decision: CERCLA’s Contribution Section Provides the Exclusive Remedy for a Liable Party Compelled to Incur Response Costs Pursuant to an Administrative Settlement

For four years, courts have been addressing an issue under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) left open by the U.S. Supreme Court in United States v. Atlantic Research Corp., 551 U.S. 128 (2007): whether a liable party sustaining expenses pursuant to a settlement following a suit under CERCLA Sections 106 or 107(a) could recover such compelled costs under Section 107(a), Section 113(f), or both. In ruling on this issue, the Eighth Circuit Court of Appeals recently held that CERCLA Section 113(f) – CERCLA’s contribution section – provides the exclusive remedy for a liable party compelled to incur response costs pursuant to an administrative or judicially approved settlement under Sections 106 or 107. Morrison Enterprises, LLC v. Dravo Corporation, 2011 WL 1237526 (8th Cir. Apr. 5, 2011).

In the case, Appellants Morrison Enterprises, LLC (Morrison) and the city of Hastings, Nebraska – both of which were liable under CERCLA for hazardous substances released into the groundwater – sued Dravo Corporation, a manufacturing site owner also liable under CERCLA. The Appellants filed suit under CERCLA Section 107 and sought to recover groundwater contamination costs related to the operation of Well D, a groundwater extraction and treatment system located downgradient of each party’s relevant source of contamination. The District Court granted Dravo Corporation’s motion for summary judgment, finding that Section 113(f) was the Appellants’ exclusive remedy. The Circuit Court affirmed.

At the outset, the Circuit Court explained that “liable parties which have been subject to Section 106 or 107 enforcement actions are still required to use Section 113.” In ruling for Dravo Corporation, the court held that, because Morrison and the city of Hastings were liable parties compelled to incur response costs pursuant to an administrative or judicially approved settlement under Sections 106 or 107, they could only bring a Section 113(f) claim for contribution.

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This post was written by Steven Nolan.

Recently, Reed Smith represented Dravo Corporation in a case captioned Morrison Enterprises, LLC v. Dravo Corporation, before the District Court for the District of Nebraska and the Eighth Circuit. A number of significant issues were addressed in the Eighth Circuit’s decision. This post discusses two issues relating to application of the statute of limitations A separate post addresses the issue of cost recovery versus contribution.

The Decision

The Eighth Circuit issued its opinion in Morrison Enterprises, LLC v. Dravo Corporation, 2011 WL 1237526 (“Morrison”) on April 5, 2011. Two issues relating to the statute of limitations were addressed. First, the court found that a cost recovery suit under §107 of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), 42 U.S.C. §9607 was not a “subsequent action” under that section where the plaintiff had previously sued the defendant for contribution under Section 113 of CERCLA. Second, the Court found that a decades-long program to install a municipal water supply system was a remedial action subject to the 6-year statute of limitation commencing from the initiation of construction set forth in 42 U.S.C. §9613 (g) (2) (B), and not a removal action, for which the statute of limitation did not begin to run until the project was completed. 42 U.S.C. § 9613 (g) (2) (A).

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This post was written by Nicolle Bagnell and Ariel Nieland.

Last week, Pennsylvania Department of Environmental Protection (DEP) Secretary Michael Krancer gave Marcellus Shale natural gas drilling operators a deadline of May 19 by which to voluntarily stop delivering wastewater produced from natural gas extraction to water treatment facilities. This request from the DEP comes as a result of concerns over increased levels of bromides detected in the Allegheny and Beaver rivers in western Pennsylvania. In August 2010, the prior administration implemented new regulations addressing the potential for contamination from "total dissolved solid" (TDS), a by-product of natural gas extraction. Bromides, which are also present in wastewater containing TDS, can become toxic when combined with chlorine used for water disinfection at treatment facilities. The 2010 TDS regulations imposed more stringent standards on publicly owned treatment works and centralized waste treatment facilities for the treatment of TDS discharges. However, the regulations included a "grandfather clause" allowing for facilities that had historically accepted drilling wastewater to continue to do so, provided that the total amount of wastewater they received did not increase. Out of the 27 "grandfathered" facilities, nearly half have voluntarily ceased accepting Marcellus Shale wastewater in the past year. DEP's request calls upon operators to stop delivering wastewater to the remaining 15 facilities in hopes that concentrations of bromides will "quickly and significantly decrease" as a result.

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This post was written by David Wagner.

A draft proposed rule that could exempt the geologic sequestration of carbon dioxide (CO2) from federal hazardous waste regulations is now moving through the regulatory process. On March 22, 2011, the U.S. Environmental Protection Agency (USEPA) sent a draft proposed rule to the White House Office of Management & Budget (OMB) that could conditionally exempt CO2 sequestered underground from Resource Conservation and Recovery Act (RCRA) requirements. It appears the rule would address the RCRA liability of owners and operators of carbon capture and sequestration (CCS) wells should CO2 leak and contaminate underground sources of drinking water. Following regulatory review by OMB, USEPA anticipates that the proposed rule will be published in the Federal Register in May 2011.

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This post was written by David Wagner.

It's really nice to be recognized. In fact, we're thrilled that LexisNexis has nominated Reed Smith's Environmental Law Resource as one of the Top 50 Environmental Law & Climate Change Blogs for 2011. Even better, they grouped the 50 nominees into 11 categories and our blog was one of just 7 blogs nominated under the "Litigation" category. LexisNexis selected the nominees based on "timely topics, quality writing, frequent posts and that certain something 'extra' that keeps a web audience coming back for more."

We certainly appreciate your interest in our blog and, if you want to support our nomination, LexisNexis is inviting comments.

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This post was written by Steven Nolan.

On January 28, 2011, the U.S. Environmental Protection Agency (USEPA) announced that it will consider vapor intrusion, the migration of volatile chemicals from contaminated groundwater or soil into buildings, as part of its system for listing Superfund hazardous waste sites. Beginning next month, USEPA will start the process with three public listening sessions. USEPA will host its first public listening session at its Arlington, Va. office on February 11, 2011. Two additional listening sessions will be held in San Francisco, Calif. and Albuquerque, N.M.

At the meetings, USEPA will accept public input on whether to include a vapor intrusion component to the Hazard Ranking System, which is the principal mechanism USEPA uses to place hazardous waste sites on the National Priorities List (NPL) of Superfund sites. The listing of a site on the NPL brings the site within the reach of the federal Superfund law, formally known as the Comprehensive Environmental Response, Compensation and Liability Act. Superfund sites are eligible for federal cleanup funds, and are subject to the detailed federal cleanup regulations set forth in the Code of Federal Regulations.

USEPA's decision to evaluate whether to include a vapor intrusion component in the Hazard Ranking System stems from recommendations issued last year by the Government Accountability Office (GAO). GAO concluded that if vapor intrusion sites are not assessed and, if needed, listed on the NPL, there is the potential that contaminated sites with unacceptable human exposure will not be acted upon. GAO recommended that USEPA determine the extent to which USEPA will consider vapor intrusion in listing NPL sites and how this will affect the number of NPL sites listed in the future.

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This post was written by David Wagner.

On May 28, the State of New York enacted the Electronic Equipment Recycling and Reuse Act, a law requiring all manufacturers that sell electronic equipment in the state to have in place a free, convenient electronic waste or recycling program by April 1, 2011. Under the new law, each manufacturer will have to recycle or reuse its market share of electronic waste by weight, based on its three-year average of annual sales in the state. They will also have to submit annual reports to the state documenting that they have met goals for collection and recycling. All electronics manufacturers must register with the state by January 1, 2011, and pay a $5,000 registration fee.

The new law, which preempts a New York City e-waste recycling law, covers televisions, VCRs, DVD and MP3 players, game consoles, fax machines, and computers and their peripherals such as monitors, keyboards, mice, scanners and printers.

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This post was written by Lou Naugle, Chris Rissetto and  David Wagner .

Almost 10 years after the United States committed in an international agreement to strengthen its hazardous waste regulations, the U.S. Environmental Protection Agency (EPA) issued a final rule that governs the shipping of hazardous waste between the United States and other countries. Details on the new rule can be found in The Sentinel, Reed Smith's quarterly newsletter that discusses export, customs and trade developments.

According to EPA, the new measures will increase regulatory oversight of the international shipping of hazardous waste and provide stricter controls. The final rule, which will be effective on July 10, 2010, is also designed to make international shipment regulations under the Resource Conservation and Recovery Act more consistent with those of the Organization for Economic Cooperation and Development (OECD), a consortium of 31 Member countries that includes the United States. Key changes to the rules include:

• Modifying the requirements concerning international shipment of hazardous waste destined for recovery among OECD countries;
• Establishing notice and consent requirements for SLABs intended for reclamation in another country;
• Changing the hazardous waste import-related requirements for U.S. hazardous waste management facilities to confirm that individual import shipments comply with the terms of EPA’s consent; and
• Revising the EPA address to which exception reports concerning hazardous waste exports are to be sent.

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This post was written by Steve Nolan and Lou Naugle.

On May 4, 2009, in Burlington Northern & Santa Fe Railway Co. v. United States, the Supreme Court addressed two issues under the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. §9601 et seq. (CERCLA), which it had never reached before. The first issue was the reach of the useful product defense, which has been generally recognized in principle by the lower courts. The second was the question of what showing is required of defendants to avoid joint and several liability that, for more than 25 years, the lower federal courts have imposed almost as a matter of course.

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This post was written by Indeg Kerr and Siobhan Hayes.

In the UK, the High Court issued judgment at the end of March in the civil litigation to decide on liability following the 2005 explosion at the Buncefield oil storage depot. The judgment raises a number of practical management issues to be considered by anyone operating a facility covered by the Control of Major Accident Hazards Regulations 1999 (COMAH) or simply managing hazardous substances in significant quantities. This article provides an overview of the judgment and outlines significant issues to consider.

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This post was written by David Wagner.

The UK's Department for Business Enterprise and Regulatory Reform (BERR) published a consultation on April 7 soliciting public comment on European Commission proposals to revise the WEEE and RoHS Directives. The consultation paper highlights the significant changes and poses questions for industry and others to address. Among other revisions, the proposal would establish under WEEE new collection targets for Member States and new targets for recovery and reuse/recycling. The proposal would also likely increase WEEE financing costs for producers. The proposed revisions to RoHS would include the possible review and restriction of four substances, specifically: hexabromocyclododecane (HBCDD); bis (2-ethylhexyl) phthalate (DEHP); butyl benzyl phthalate (BBP); and dibutylphthalate (DBP). Consultation responses (i.e., public comments) are due May 13, 2009.

The WEEE Directive (or Directive on Waste Electrical and Electronic Equipment) aims to minimize the environmental impact of electrical and electronic equipment by encouraging its reuse, recycling and recovery when it is discarded at end of life. The RoHS Directive (or the Restriction on the use of certain Hazardous Substances Directive) ensures that all Member States observe similar restrictions on the levels of six hazardous substances in the same categories of electrical and electronic equipment.
 

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 This post was written by David Weiss and Megan Demeter.

On March 9, 2009, the California Supreme Court issued its decision in State of California v. Allstate Insurance Co., Case No. S149988. In this unanimous decision, the Court resolved several issues in favor of the policyholder regarding the application of pollution exclusion provisions in the State’s comprehensive general liability insurance policies. The case arises out of the State of California’s liability for environmental contamination at the “Stringfellow Acid Pits” a state designed and operated waste disposal facility in Riverside County, California.

First, the Court addressed the relevant “discharge” for determining whether the “sudden and accidental” exception to the pollution exclusion applied and, therefore, reinstated coverage that otherwise would have been excluded. The contamination at issue was caused by the escape into the environment of pollutants that had been placed into containment ponds on the site. The Court affirmed the Court of Appeal’s decision that the relevant discharge for purposes of determining whether the discharge was “sudden and accidental” is the release of waste from the containment ponds rather than the initial disposal of waste into the ponds as the insurers argued. 

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This post was written by Louis A. Naugle and Mark A. Mustian.

A few months ago, EPA began a process toward possible regulation of the disposal of unused pharmaceuticals into sanitary sewer systems, by publishing notice of its intent to submit an Information Collection Request in order to better understand and document the current handling and disposal practices of unused pharmaceuticals. See, 73 FR 46903 (Aug. 12, 2008). Just last week, EPA announced a separate but related proposed rulemaking, in which EPA is proposing changes to the handling and disposal of unused pharmaceuticals that are currently classified and handled as hazardous waste (the “Unused Pharmaceuticals Rulemaking”). In this proposed Unused Pharmaceuticals Rulemaking, EPA plans to add pharmaceutical wastes that are RCRA hazardous waste to the list of materials that are classified as universal wastes. See, 73 FR 73519. This proposed change will potentially reduce costs for facilities that currently dispose of their unused pharmaceuticals as RCRA hazardous waste. The impact of EPA’s overall efforts to regulate the large and unknown volume of pharmaceutical waste not currently handled as hazardous waste is unclear.

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This post was written by Louis A. Naugle and Mark A. Mustian.

On Aug. 12, 2008, EPA announced its intention to submit an Information Collection Request (“ICR”) to the Office of Management and Budget, for collection of information from the Health Services Industry. 73 FR 46903 This ICR is the first step by EPA toward possible regulation of the disposal of unused pharmaceuticals, and the implementation of effluent limitations for disposal of unused pharmaceuticals to sanitary sewer systems. 

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