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Taft's Environmental Practice is comprised of 29 motivated and focused attorneys who practice in all facets of environmental law, including 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 are regularly engaged in insurance disputes concerning environmental issues and agricultural issues involving CAFOs and CFOs. The purpose of this newsletter is to provide you with insights from our team that may be of interest to yours. |
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Court Prevents The EPA From Delaying Rules For Boilers and Incinerators
On January 9, 2012, the District Court for the District of Columbia vacated the EPA's May 18, 2011 "Delay Notice" that stayed effectiveness of a rule limiting emissions from industrial, commercial, and institutional boilers and another rule limiting emissions from commercial and industrial solid waste incinerators. These rules have had a long litigation history. The EPA had been ordered to promulgate these two rules in a previous case and finalized them on February 21, 2011. They were to become effective on May 20, 2011. Shortly after promulgation, the EPA announced that it was initiating the administrative reconsideration process for the two rules. Petitions challenging the new rules were also filed in the D.C. Circuit by the Sierra Club and others.
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Employer Not Liable Under CERCLA For Employee's Actions
On November 9, 2011, the United States District Court for the District of Minnesota (No. 0:11-cv-00619-DWF-FLN), ruled that Northern States Power Company, through its wholly owned subsidiary Xcel Energy, ("Xcel") was not liable for the unauthorized actions of its former employee that resulted in environmental contamination.
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Confusion in Wisconsin: When Does an Asset Purchase Agreement Make You a Liable Party Under CERCLA?
On December 19, 2011, the United States District Court for the Eastern District of Wisconsin denied defendant Appleton Paper's Motion for Summary Judgment that sought a determination that Appleton was not liable to the United States pursuant to the cost-recovery provisions of CERCLA Section 107(a). Appleton had acquired certain assets from NCR under an asset purchase agreement (the "Asset Agreement"). In what might be described as a chilling decision rightfully criticized as a fundamental misunderstanding by the court of CERCLA, the Wisconsin district court held that CERCLA Section 107(a) (cost-recovery) could impose direct liability to the United States on a purchaser of assets (Appleton), even though the seller (NCR) continued in existence, because CERCLA strict liability under Section 107(a) is a "violation of law" as set forth in the Asset Agreement. The court's holding is baffling. Not only does Section 107(a) not speak to violations of law, but the court's holding is contrary to the legislative history of CERCLA, and to those provisions of CERCLA that describe violations of law and their penalties.
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D.C. Circuit Stays EPA's Cross-State Air Pollution Rule
On December 30, 2011, the United States Court of Appeals for the D.C. Circuit stayed the EPA's Cross-State Air Pollution Rule ("CSPAR") pending resolution of a challenge to the rule. EME Homer City Generation, L.P., v. EPA, No. 11-1302 (D.C. Cir. Dec. 30, 2011) (per curiam). CSPAR was finalized by the EPA on July 6, 2011 and the first phase of compliance was scheduled to begin on January 1, 2012. CSPAR was promulgated as a replacement to the Clean Air Interstate Rule ("CAIR") which was invalidated by the D.C. Circuit but was allowed to remain in place until EPA could promulgate a replacement rule.
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The $24 Million Vapor Intrusion Remedy
The filing of an amended consent decree to an old Superfund site recently caught the attention of environmental lawyers around the country because it added a vapor intrusion remedy to a decades-old site. See Joint Stipulation to Amend Consent Decree (Dkt. 74), United States v. Intel Corp. and Raytheon Co., 91-CV-20275 (N.D.Calif. Filed Dec. 21, 2011).
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Portland Cement Facilities Challenge New EPA Rules
On December 9, 2011, the United States Court of Appeals for the District of Columbia invalidated and delayed the implementation of certain provisions in the United States Environmental Protection Agency's ("EPA") new rules governing hazardous pollutants emitted from cement kilns. EPA passed the rules pursuant to the National Emission Standards for Hazardous Air Pollutants ("NESHAP") and New Source Performance Standards ("NSPS") sections of the Clean Air Act.
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Kim Burke to Speak at 21st Annual Business & Industry's Sustainability & EHS Symposium
Kim Burke, co-chair of Taft's Environmental Practice Group, will speak at the 21st Annual Business & Industry's Sustainability & EHS Symposium held March 27-28, 2012 at the Duke Energy Center. Mr. Burke will co-present "Ohio Brownfield Redevelopment...the Ultimate Sustainable Land Use Practice" on March 28. Co-presenters include Matt Wagner of KERAMIDA, Amy Yersavich of Ohio EPA, and Robert Lafkas of Micro Metals.
To learn more about this symposium, please click here. |
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Taft's Environmental Law Newsletter is used to inform our clients and friends of significant new developments and current issues in environmental law. For more information about Taft Stettinius & Hollister LLP, please visit http://www.taftlaw.com.
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