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August 2010

Failure to File Compulsory Counterclaim Dooms U.S. EPA’s Cost-Recovery Action

Siros_Steven_COLORBy 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.

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.

Carbon Disclosure Project’s 2010 Water Disclosure

Grayson_Lynn_COLORBy 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).

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

Grayson_Lynn_COLORBy E. Lynn Grayson


Meeting in Guanajuato, Mexico this week, the Commission for Environmental Cooperation agreed upon its environmental priorities for North America including:

  1. Building Strong Environmental Institutions and Legal Structures
  2. Combating Climate Change by Limiting Pollutants
  3. Improving Air Quality
  4. Expanding Access to Clean Water
  5. Reducing Exposure to Toxic Chemicals
  6. 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

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.

Continue reading "CERCLA Plaintiff’s Failure to Establish Past Costs Liability Precluded Declaratory Judgment as to Future Costs Liability" »

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

Grayson_Lynn_COLORBy 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