Gabrielle Sigel and Genevieve Essig, attorneys in Jenner & Block's Environmental, Energy & Natural Resources Law Practice, recently posted to Jenner & Block's Environmental Cost Recovery & Lender Liability Update Resource Center their November 2010 Update of Environmental Cost Recovery developments. Of note in this month's update are summaries of the U.S. District Court of the Western District of New York's November 2 decision in NL Indus., Inc. v. Halliburton Co. and the U.S. District Court for the Western District of Washington's December 7 decision in United States v. Washington State Dep't of Transp.
Click here to read the November 2010 Environmental Cost Recovery & Lender Liability Update.
Settling lawsuits filed by certain States (located in the Northeast and West), environmental groups, New York City and the District of Columbia, on December 23, 2010, U.S. EPA announced that it will set New Source Performance Standards ("NSPS") for greenhouse gas ("GHG") emissions from fossil fuel-fired electric power plants and petroleum refineries. NSPS are required under Section 111 of the Clean Air Act ("CAA"). EPA agrees that it will issue proposed standards by July 26, 2011, for power plants, and by December 10, 2011, for refineries. EPA also agrees that it will issue the standards as final rules for power plants and refineries by December 10, 2011, and November 10, 2012, respectively. EPA's settlement agreements are subject to a 30-day public comment period before they are final.
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.
Gabrielle Sigel and Genevieve Essig, attorneys in Jenner & Block's Environmental, Energy & Natural Resources Law Practice, recently posted to Jenner & Block's Environmental Cost Recovery & Lender Liability Update Resource Center their May 2010 Update of Environmental Cost Recovery developments. Of note in this month's update are summaries of the 9th Circuit's June 2 decision in U.S. v. Aerojet Gen. Corp. and the U.S. District Court of New Jersey's May 26 decision in Raritan Baykeeper, Inc. v. NL Indus.
Click here to read the May 2010 Environmental Cost Recovery & Lender Liability Update.
On June 2, 2010, the U.S. Court of Appeals for the Ninth Circuit held that a non-settling PRP's right to contribution under CERCLA was a legally sufficient interest to justify intervention to challenge a proposed consent decree between the federal government and the settling PRPs, joining ranks with the Eighth and Tenth Circuits, the only other U.S. appellate courts to address the issue. The case is U.S. v. Aerojet Gen. Corp., No. 08-55996 (9th Cir. Jun. 2, 2010).
On the afternoon of May 12, 2010, U.S. Senators Kerry (D‑MA), and Lieberman (I‑CT), jointly introduced their “discussion draft” of the American Power Act (“the APA”), as a Senate version of comprehensive climate change regulation. The U.S. House of Representatives passed its comprehensive climate change bill, the Waxman-Markey, American Clean Energy and Security Act, H.R. 2454, in June 2009. The Kerry-Lieberman bill is the result of negotiations ongoing since Fall 2009, attempting to develop a bipartisan climate change bill, with support from both industry and environmental groups. The 987-page bill unveiled on May 12 intends to reduce U.S. industry-wide GHG emissions from a 2005 baseline by 17% in 2020 and by 80% in 2050, through a cap-and-trade scheme. As currently structured, the APA has six substantive, somewhat overlapping, sections.
Gabrielle Sigel and Jennifer Cassel, attorneys in Jenner & Block's Environmental, Energy & Natural Resources Law Practice, recently posted to Jenner & Block's Climate Change Update Resource Center their March 2010 Update of Climate Change developments. Of particular note in this month's update are: (1) an announcement by EPA’s Administrator that GHG emissions requirements for stationary sources are to begin in 2011; and (2) the involvement of sixteen states in litigation attacking EPA’s endangerment finding for GHGs. Click here to read the March 2010 Climate Change Update.
CERCLA Case Law Developments
- District Court Finds Owner of Leased Equipment Liable Under CERCLA
On February 9, 2010, the United States District Court for the Northern District of Illinois held that an owner of equipment leased for use in an electroplating operation is a PRP under CERCLA as a “facility owner at the time [of cleanup].” United States v. Saporito, No. 07-C-3169, slip op. at 15 (N.D. Ill. Feb. 9, 2010). In Saporito, the federal government sought to recover $1.5 million it spent to clean up hazardous substances affecting soil and groundwater at the former Crescent Plating Works site on the northwest side of Chicago from defendant individuals James Saporito and Paul Carr. During the electroplating process, items to be plated were dipped into a series of chemical baths through which an electrical current was run, and hazardous materials contained in the baths, such as sodium cyanide, hexavalent chromium, and TCE, at times splashed onto the concrete floor, ultimately reaching the soil below. Saporito, whose dealings with Crescent Plating included his purchasing and leasing back to Crescent Plating equipment used in the electroplating process, filed a number of counterclaims against the government and moved for summary judgment on his liability. The government moved for summary judgment on its claims that Saporito was both an owner and an operator liable under CERCLA, and moved to dismiss Saporito’s counterclaims, both of which the court granted.
CERCLA Case Law Developments
- District Court Finds Non-Settling PRP Can Intervene in CERCLA Consent Decree
On January 15, 2010, the U.S. District Court for the Northern District of West Virginia held that a PRP’s right to contribution under CERCLA is a significantly protectable interest permitting a non-settling PRP to intervene as of right to challenge a consent decree between the federal government and a settling PRP. United States v. Exxon Mobil Corp., No. 08-124 (N.D. W. Va. Jan. 15, 2010). In Exxon, U.S. EPA identified Vertellus Specialties, Inc. (“Vertellus”) and CBS Corporation (“CBS”) as PRPs for contamination at Big John’s Salvage Site (“BJS Site”), a former industrial site in Marion County, West Virginia, the remediation of which could cost more than $24 million. Exxon, previously identified by EPA as a PRP due to its predecessor’s coke production activities nearby, had agreed to a consent decree under which it would pay the government $3 million in exchange for relief from liability for pollution at the BJS site and protection from contribution claims by other PRPs; Vertellus and CBS asserted that the decree unreasonably underestimates Exxon’s liability and sought intervention under Fed. R. Civ. P. 24(a)(2) and CERCLA § 113(i). Overruling EPA’s objections, the court granted Vertellus’s and CBS’s motions to intervene “for the limited purpose of challenging the proposed consent decree.” Exxon, No. 08-124, slip op. at 20.