On October 20, 2010, the United States Department of Justice and Motors Liquidation Company, the "Old GM," submitted to the bankruptcy court a settlement agreement pursuant to which Old GM would pay over $640 million in cash and over $20 million in non-cash assets for the remediation of 89 facilities that were not conveyed to the reorganized General Motors, which emerged from bankruptcy earlier this year. Of the 89 facilities that are subject to the agreement, 59 are known to be contaminated with hazardous substances. Under the agreement, Old GM is receiving credit for $11 million that it had previously expended in the clean-up of these sites.
Jenner & Block will host CREW's Leadership in Our Changing Environment Series Program "Climate Change and Water Scarcity: Critical Insights for Real Estate Professionals" on November 4th from Noon – 2:00 p.m. The program will be led by Nina J. Fain, President, Chicago Economic Development Institute and welcoming remarks will be provided by Michelle M. McAtee, Jenner & Block. Speakers include: Dr. Ross D. Powell, Northern Illinois University, a noted authority on climate change and its impacts, as well as Jenner & Block partners, Gay Sigel and Lynn Grayson.
U.S. DOJ and WDNR recently filed action against 10 companies and two municipalities seeking continued cleanup of Wisconsin's Lower Fox River and Green Bay Area. The lawsuit also seeks payment of government oversight costs and natural resource damages. This latest lawsuit is one of the many enforcement and judicial actions initiated by federal and state authorities in response to PCB contamination in and around the Fox River.
On October 8, 2010, Henry Gifford and Gifford Fuel Saving, Inc., filed a complaint against the U.S. Green Building Council ("USGBC") in the U.S. District Court for the Southern District of New York, Case No. 10-cv-7747. The class action challenges USGBC's promotion of its LEED (Leadership in Energy and Environmental Design) standards.
EPA recently released a draft plan that describes the actions the Agency will undertake to progress the 2008 initiative aimed at preserving green space. EPA's RE-Powering America's Land: Siting Renewable Energy on Potentially Contaminated Land and Mining Sites takes a multi-pronged approach to site cleanup and development of renewable energy production facilities on contaminated lands. The Agency launched this initiative to determine the feasibility of renewable energy production on Superfund, brownfields and former mining sites as opposed to green space.
Steven Siros will be speaking at DRI's Annual Meeting on October 21st in San Diego, California on recent developments in the area of climate change nuisance litigation. The Supreme Court is being asked to review recent climate change nuisance decisions from the Second and Fifth Circuits and another significant nuisance case is currently on appeal in the Ninth Circuit. The viability of these common law nuisance claims is an issue that will need to be resolved by the Supreme Court and when this occurs, it will have obvious implications for GHG emitting sources. Mr. Siros' presentation will provide an update on the current status of climate change litigation in the United States and assess what lies ahead, especially in light of recent U.S. EPA initiatives to regulate GHG emissions. For more information, please click here.
EPA recently sent information requests to 1,000 aerospace manufacturers and 152 petroleum refineries seeking toxic air emissions data. See 75 Fed. Reg. 59,710; 75 Fed. Reg. 60,107 (September 28-29, 2010). The purpose of these information requests is to determine whether future controls are needed to limit hazardous emissions. EPA must either promulgate additional standards against any residual risk or make an official determination that no further controls are necessary.
U.S. EPA has reversed course and elected to regulate perchlorate under the Safe Drinking Water Act ("SDWA"). Reversing a controversial earlier decision not to regulate this chemical, on September 29, 2010, U.S. EPA sent a draft notice to the Office of Management and Budget outlining its decision to regulate perchlorate under the SDWA. This action, which had been broadly opposed by industry and the DoD, is the first step in setting an MCL for perchlorate which is expected to be well below the existing cleanup target of 15 ppb. Perchlorate is an ubiquitous contaminant in groundwater across the country and it is typically associated with rocket fuel and fertilizers. It is especially an issue in California where numerous drinking water supplies have been contaminated with perchlorate.
In Celanese Corporation v. Martin K. Eby Construction Company Inc., the Fifth Circuit Court of Appeals addressed the scope of "arranger" liability under CERCLA and affirmed the ruling of the district court that Defendant-Appellee Martin K. Eby Construction Company, Inc. was not liable as an "arranger" under CERCLA for the remediation costs Celanese Corporation had incurred. In 1979, Eby Construction was installing an underground water pipeline for the Coastal Water Authority of Texas. A backhoe operator for Eby Construction, while excavating in an area that contained a Celanese pipeline that transported methanol, unknowingly struck and damaged the Celanese pipeline. Over the years, the damaged pipeline deteriorated and began to leak methanol. In 2001, Celanese discovered the leak and over the next seven years removed and disposed of over 230,000 gallons of methanol.
Earlier this summer, EPA proposed to regulate coal ash for the first time to address the risks from the disposal of such wastes generated by electric utilities and independent power producers. 75 Fed. Reg. 35127 (June 21, 2010). Coal ash currently is exempt under RCRA but there are growing concerns about the environmental impacts of coal ash in landfills and surface impoundments following the December 2008 coal ash spill from the TVA's plant in Kingston, TN that flooded over 300 acres with coal combustion residuals.