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Taft's Environmental Practice provides nationally recognized services in the areas of trial practice, Superfund defense and negotiation, enforcement defense, cost-recovery for plaintiffs and defendants, criminal environmental defense, environmental insurance and toxic tort litigation, mold and sick building litigation, lawsuits involving environmental problems discovered as a result of real property transfers or mergers and acquisitions, Brownfields redevelopment, defense of claims of occupational exposures, and administrative proceedings before state and federal agencies. Taft's environmental lawyers also regularly are engaged in insurance disputes concerning environmental issues and agricultural issues involving CAFOs and CFOs. As a Taft client, you can utilize the capital of 31 intensely motivated and focused attorneys in all facets of environmental law.
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Do EPA's Form Tolling Agreements Automatically Preserve Statutes of Limitation Defenses to CERCLA and Other Claims?
Parties potentially responsible for contaminating land or water, "PRPs,"
frequently enter into "tolling agreements" with the United States
Environmental Protection Agency (EPA) when EPA is not ready to file a
CERCLA cost-recovery action, and EPA believes that the applicable
statutes of limitation may run. A tolling agreement is intended to
serve as a "standstill agreement" so that the time covered by the
tolling agreement (usually 3-12 months) does not count towards
expiration of any statutes of limitation. Tolling agreements have been
used by EPA since the 1980 passage of CERCLA to allow EPA and the PRPs
time to negotiate without fear of that the statute of limitations will
expire. In many occasions, the tolling agreements are extended by
mutual written consent. Until recently, it was assumed that the tolling
agreement was mutually beneficial to both EPA and PRPs: any claims of
EPA would not be prejudiced by the time spent during negotiations, and
PRPs would not be prejudiced to the extent the PRPs held a defense,
prior to execution of the tolling agreement, that EPA had missed the
applicable statutes of limitation.
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Federal Appeals Court Reverses $1 Billion Air Pollution Judgment Against TVA Coal-Fired Power Plants
The U.S. Court of Appeals for the Fourth Circuit recently reversed a
controversial district court decision that allowed third parties to use
the court system to establish emission standards that could conflict
with the requirements of the Clean Air Act. The U.S. District Court for
the Western District of North Carolina initially found that four
Tennessee Valley Authority (TVA) power plants constituted a "public
nuisance" in North Carolina. Consequently, the district court issued an
injunction against the four plants, ordering the installation and
continuous operation of costly emission control technologies by 2013,
even though such controls were not required by the Clean Air Act. The
upgrades required by the judgment were estimated to cost in excess of $1
billion.
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Clean Water Act Citizen Suit Against Ethanol Plant Settled
A U.S. District Court for the Western District of Wisconsin recently
approved a joint stipulation dismissing a citizen's suit filed for
alleged violations of the Clean Water Act. In Domino, et al. v.
Didion Ethanol, LLC, environmental groups filed a citizen suit
against Didion Ethanol, LLC, a large producer of approximately 50
million gallons per year of fuel-grade ethanol distilled from corn.
The environmental groups alleged that Didion had repeatedly violated
limits set in its state-issued NPDES permit for certain water treatment
additives, total suspended solids as well as the prohibition on the
discharge of "floating solids." While Didion did not admit or deny that
these discharges occurred, it argued - after the lawsuit was filed -
that it eliminated all discharges by implementing a state-of the-art
"Wastewater Reuse System."
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Chemical Users: Beware of the Clean Air Act's General Duty Clause
Like OSHA, the Clean Air Act has a General Duty Clause, or GDC. It is
found at Section 112(r) (1) of the Clean Air Act, the section that
establishes EPA's hazardous air pollutants program. However, unlike the
rest of Section 112, the GDC applies to any stationary source that
produces processes, handle or stores an "extremely hazardous
substance." It imposes a general duty, in the same manner as OSHA's
general duty clause, to identify hazards associated with chemical
activities, and to design and maintain the facility so as to prevent
such hazards.
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CERCLA Owner / Operator Liability Is Determined When Cleanup Costs Are Incurred
In a matter of first impression, the U.S. Court of Appeals for the Ninth
Circuit has held that, for the purposes of CERCLA liability, an owner
or operator is determined at the time cleanup costs are incurred, and
not when the lawsuit is filed.
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Five Steps to Protect Your Business from Being Liable for Your Supplier's or Distributor's Environmental Contamination
We're often asked how can a business limit its liability exposure for
the cost to clean up environmental contamination when entering into
supplier/distributor agreements where it's possible, maybe even likely,
that some environmental contamination will result from the supplier's
manufacturing or distributor's handling of the product? This has been
the subject of several recent cases which provide guidance on the
preventative steps a business can take to protect itself. This article
describes two of the recent cases that examine liability under the
federal Comprehensive Environmental Response, Compensation and Liability
Act (CERCLA) and the Clean Water Act (CWA) and lists five steps every
business should consider to limit its liability exposure for a
supplier's or distributor's environmental contamination.
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