Although I do try to be entertaining, I don’t normally post items solely for their humor value, but I have to admit, I loved EPA’s press release announcing its "National Bed Bug Summit.” I just want to know, do those who attend in person get free rooms? Little goody bags of approved pesticides when they check in?
Two recent decision illustrate that PRPs do hold some cards in hazardous waste litigation, particularly if they are willing to be aggressive in investigating the contamination. Both cases demonstrate that “victims” or bystanders can face serious consequences if they do not cooperate with the investigation.
In Carlson v. Ameren Corporation, the plaintiffs had purchased a former manufactured gas plant from Ameren Corporation. They brought suit under RCRA, seeking an injunction requiring that Ameren remediate the property. Ameren filed counterclaims against the Carlsons, alleging that they had refused to cooperate with the cleanup. The question was whether such a lack of cooperation could constitute proof that the owner was “contributing to or has contributed to the handling” of the solid or hazardous waste at issue in the case. The 7th Circuit rule requires “active involvement in handling or storing of materials.” Denying the plaintiffs' motion to dismiss the counterclaim, the court concluded that “obstruction may be construed as active storage of materials.”
The Carlsons prevented Ameren from accessing and repairing the land. Furthermore, as a result of their affirmative action in obstructing the repair of the land, the Carlsons are allegedly permitting the continued leaching of hazardous material into the land. As a result, the Carlson’s [sic] may be said to be actively contributing to the condition of the Property.
Voggenthaler v. Maryland Square presents a different situation, but reinforces the lesson that even those probably not otherwise liable need to cooperate. In this case, downgradient property owners had sued a mall owner and a dry cleaner located at the mall, alleging contamination from a PCE release at the dry cleaner. The defendants were clearly liable, but were seeking other deep pockets to contribute to the cleanup. Another mall, the Boulevard Mall, was located across the highway from Maryland Square. That mall contained a Sears store and other automotive uses that could have used, and released, PCE. The original defendants filed a third-party complaint against the Boulevard Mall. They also filed a request for inspection under Rule 34 in order to implement environmental testing on the Boulevard Mall property, intended to provide evidence that there was a separate source of contamination affecting the plaintiffs. When Boulevard Mall refused, Maryland Square filed a motion to compel.
I’ll spare you all of the procedural details; the bottom line is that Magistrate Judge Foley, while acknowledging that the third party claims against Boulevard Mall were weak, allowed the motion to compel. The decision is worth reading and provides an interesting discussion of “fishing expeditions” versus “discovery of relevant and potentially admissible evidence.” In short, the Court refereed what might be called a preliminary battle of the experts and concluded that the Maryland Square expert had made - barely - enough of a case that the Boulevard Mall property might be a source of contamination to justify the testing. Interestingly, Magistrate Judge Foley said that, if he were deciding a summary judgment motion, he would have ruled that Maryland Square’s claims would not survive. However, under “a more lenient discovery standard,” he concluded that Maryland Square had “made a sufficient threshold factual showing to support the proposed testing.
The lesson for known PRPs? Aggressive efforts to investigate contamination can be a useful sword in litigation. The lesson for others? If the PRPs are acting responsibly, you had better cooperate.
Last month, I noted that, in the absence of comprehensive climate legislation, U.S. carbon policy would be a mish-mash of several elements – including more NSR enforcement. In fact, Phillip Brooks, director of EPA’s Air Enforcement Division, had just told an ALI/ABA forum that EPA’s NSR enforcement initiative is alive and well and he predicted more closures of old coal plants as a result of EPA’s NSR enforcement. Earlier this month, proving that Brooks meant what he said, the United States sued Ameren Corporation, alleging NSR violations at Ameren’s Rush Island facility in Festus, Missouri. 
Apparently, I am not the only person who has noticed the connection between NSR enforcement and efforts to make life generally more difficult for coal plants. (Perhaps Mr. Brooks should not have been so explicit in his ALI/ABA remarks.) This week, Missouri Republican Senator Roy Blunt wrote to Lisa Jackson, criticizing the Ameren enforcement action and describing it as “another backdoor method used by the EPA to broadly penalize the use of coal in the United States.”
Blunt also criticized the “tsunami” of regulations by EPA that will increase the cost of coal-fired electricity generation. We had previously noted the Credit Suisse report which predicted the closure of more than 50 gigawatts of coal-fired capacity. Blunt referred to a study by the North Electric Reliability Corporation which made a similar prediction.
As my readers know, I dislike the NSR program and the enforcement initiative. I do think that many of these projects, often 15, 20, or 25 or more years ago, truly were thought routine, even if EPA may be able to persuade a court that they were not “Routine Maintenance” within the meaning of the regulations. The NSR program is certainly not a cost-effective way to regulate. However, NSR is part of the statute, EPA believes in it, and the case law is, from EPA’s perspective, at worst ambiguous and at best favorable. I expect that EPA would be pursuing many of these cases, even if climate change were not an issue and CO2 not considered a problem.
Is EPA sad that its NSR enforcement has the collateral impact of making coal less economic so that small coal-fired plants retire early, thus reducing GHG emissions? I doubt it. Does the climate change issue increase EPA’s enthusiasm? Perhaps so. The question is whether this added motivation is relevant. EPA’s intent may not be relevant to the courts, but it certainly looks as though it is relevant to Congress.
In Cool Hand Luke, Paul Newman is sentenced to two years on a chain gang for cutting the heads off of municipal parking meters. The Mingo Logan Coal Company wants to cut the top off of 3.5 square miles of West Virginia mountaintop. This week, EPA gave the company's Spruce No. 1 Mine 
proposal the death penalty, using its authority under § 404(c) of the Clean Water Act to veto a permit issued by the Army Corps of Engineers in 2007. As EPA noted in its press release, this is only the 13th time in 38 years that EPA has utilized § 404(c) to veto a permit.
EPA’s decision resulted in howls of protest, not just from the mine’s owner, but also from the two Senators from West Virginia. Joe Manchin, who famously campaigned with an advertisement in which he shot a purported copy of cap-and-trade legislation, described EPA’s decision as a “shocking display of overreach.”
EPA’s characterization was slightly different. The agency summarized the mine’s impacts as follows:
Burying more than 35,000 feet (more than 6 miles) of high-quality streams under mining waste, which will eliminate all fish, invertebrates, salamanders, and other wildlife that live in them;
Polluting downstream waters as a result of burying these streams, which will lead to unhealthy levels of salinity and toxic levels of selenium;
Causing downstream watershed degradation that will kill aquatic wildlife, impact birdlife, reduce habitat value, and increase susceptibility to toxic algal blooms;
Inadequately mitigating for the mine’s environmental impacts to high-quality streams , by using mining ditches, for example, to offset the functions provided by these natural streams; and
Failure to consider cumulative watershed degradation resulting from past, present, and future mining in the area.
While I’m sure that the owner will dispute some of EPA’s characterization, my money’s on EPA, overreach or not. The impacts of mountaintop mining are substantial and I don’t see a court rejecting EPA’s conclusion that they are, in this case, “unacceptable.”
To bring the situation back to Cool Hand Luke, what EPA and the mining companies have here is a failure to communicate, and EPA is the one in the Strother Martin role, 
wielding a very painful veto hammer.
Justice Brandeis famously suggested that states may “serve as a laboratory” for the rest of the country. If this is so, I think it is fair to say that U.S. EPA has not accepted the results of the biomass experiment conducted in Massachusetts. Last year, following receipt of a study regarding the GHG emission implications of various types of biomass fuels, Massachusetts decided to severely restrict the circumstances in which biomass would be considered a renewable fuel.
Earlier this week, EPA decided not to go along with the restrictive approach taken by Massachusetts, and granted a petition to stay application of GHG permitting to biomass facilities, while EPA further studies the issue. Specifically, EPA promised to amend the tailoring rule to exempt biomass facilities for three years. In a letter EPA Administrator Lisa Jackson sent to Senator Stabenow as part of the announcement, Jackson stated that:
biomass can be part of a national strategy to reduce dependence on fossil fuels, and efforts are underway to foster the expansion of renewable resources and promote biomass as ways of addressing climate change and enhancing forest management.
It’s one thing for a state to differ from the federal government or other states on matters of policy. However, my guess is that the federal EPA and the great Commonwealth of Massachusetts have pretty much the same policy goal – reduction of greenhouse gas emissions. This is really a question of science. Does use of biomass help reduce GHG emissions? Shouldn’t the answer be the same everywhere?
I’m not a scientist and cannot comment on the reliability of the Massachusetts biomass study. (And I should disclose that our firm has represented the proponent of one of the biomass plants in Massachusetts.) However, it does seem to me that this is one area in which a uniform national policy is the right approach. Let’s give EPA the three years that it apparently needs to sort out the issue, and then have one policy applicable nationwide.
With everyone in agreement that cap-and-trade legislation is dead in Congress for the near term, attention is now turning to whether Congress might be able to pass some kind of renewable or clean energy standard. In fact, even Thomas Donahue, President of the U.S. Chamber of Commerce, sworn foe of cap-and-trade legislation, is saying that the Chamber could support some kind of climate change legislation – presumably a CES including nuclear power – as long as the legislation precludes EPA regulation of GHG under existing authority.
For those who are taking the half a loaf approach to climate legislation, I recommend this post by Rob Stavins at Harvard and Dick Schmalensee at MIT, which compares cap-and-trade legislation with CES legislation. The piece is a remarkably cogent short analysis of the issue, so I hate to excerpt something which can be read in a few minutes. Nonetheless, for the lazy among my readers, the bottom line is that:
Carbon cap-and-trade has been killed in the Senate, presumably because of its costs. Renewable electricity standards or clean energy standards would accomplish considerably less and would impose much higher costs per ton of emissions reduction than cap-and-trade would. This does not sound like a step forward.
Earlier this week, the United States brought another NSR/PSD enforcement action, this time concerning the Homer City Plant, 
in Pennsylvania. The suit itself isn’t big news, though it’s helpful to have periodical reminders that the NSR enforcement initiative remains active at EPA and DOJ; it is a significant part of the government’s arsenal against traditional pollutants.
It’s also important to remember that, in the absence of comprehensive climate legislation, the NSR enforcement initiative has become part of the government’s climate strategy. The plant spokesman stated that the plant is “positioned quite well to succeed in whatever environment we might be looking at in the future." However, Randy Francisco, Pennsylvania representative for the Sierra Club's "Beyond Coal" campaign (and doesn’t the name say it all), had a different view:
I don't think it's worth it to put the money into it to clean it up. This is one of the dirtiest plants in the country, and it really just needs to be put to bed.
Why do I describe this as a fine mess and how did we get here? To mix my comedic metaphors, we have met the enemy and he is us. It’s a mess, because the PSD/NSR program is a clunky, awkward, and vague program and, whatever the merits of the specific legal questions in the various suits, EPA can’t really deny that its interpretation of the program has not been a model of consistency. It’s a mess because it’s difficult to achieve programmatic results through enforcement. It’s a mess because using PSD enforcement to make coal more expensive so that coal plants will shut down and stop emitting GHGs is hardly an efficient way to regulate GHGs.
Why are we the enemy? Simple. Because the environment would be cleaner and the economy stronger with comprehensive climate legislation combined with significant changes to the NSR/PSD program and we haven’t figured out a way to get there.
The result? No one’s happy (except, perhaps, some busy environmental lawyers and some politicians who can find opportunities for grandstanding). EPA and environmentalists aren’t happy, because we don’t have comprehensive climate legislation. Large emitters aren’t happy, because they are left with the collateral damage of PSD/NSR, a program that should be allowed to die a quiet death.
For those of us who live in the trenches of these battles, at least one detail in the complaint is worth noting. The United States brought suit, not only against the current owner and operator of the Homer City plant, but also against New York State Electric and Gas Corporation and Pennsylvania Electric Co., both of which owned the plant prior to 1998. Why the emphasis? Because it’s more than six years ago and therefore outside the statute of limitations for the government’s penalty claims. Indeed, the government seeks penalties only from the current owner/operators. Nonetheless, it seeks injunctive relief against NYSEG and PENELEC, even though they’ve had no connection to the plant in more than 12 years. The complaint states that:
They can be ordered to fund and implement contracts with third-party vendors who design, fabricate, and install the air pollution control equipment at issue. They can also take various actions to mitigate their past illegal pollution such as purchasing air pollution credits known as “allowances.”
A fine mess we’ve gotten ourselves into.
It may be an apocryphal story, but my understanding as to why so many small municipal landfills in New Hampshire ended up on the NPL is that some bright light in the Granite State thought that Superfund was a public works program and that the fund would pay for the landfill closures. The result? Small towns became PRPs, responsible for Superfund response costs which, in some cases, approximated their annual municipal budget.
I recall going to a public meeting concerning EPA’s preferred alternative at one site. At most sites, the public pleads for EPA to require more cleanup – because someone else will be paying, of course. Here, the public was begging for less cleanup, because they thought that they had better ways to spend the money. Even if the money had to be devoted to public health and safety, they were confident that spending money on traffic lights and police and fire departments would yield a greater return.
I was reminded of this episode by EPA’s announcement last week of the release of guidance recommending the removal of PCB-containing light ballasts from schools. According to a report in the Wall Street Journal, New York City estimates that the cost to remove the ballasts will be $1 billion. Anyone think that NYC might have a better use for $1 billion in school spending?
There are really two points to this story. The first is that legislation in response to panics is not a good idea. The notion that there are special legislative provisions for PCBs, unlike the myriad of other toxic chemicals which are handled under provisions of general application is, to use a technical term, nuts. It has led to a separate PCB program within EPA which, in the bureaucratic nature of things, has to justify its existence, leading to costly recommendations such as those made last week.
Second, what if it really would be better to spend money on fire trucks, or traffic lights, or anti-drug programs in schools? To be fair to EPA, this is not a question the agency is tasked with answering. However, shouldn’t somebody be asking and answering such questions before regulations with such potential consequences are promulgated?
This is not about cost-benefit analysis, which simply asks whether the benefit of the requirement is worth its costs. It’s not even cost-effectiveness analysis, at least as EPA normally thinks about it. Such analysis would normally only try to determine the most cost-effective way to eliminate PCBs. I’m after something deeper. Even after we’ve determined the most cost-effective way to eliminate PCBs from light ballasts, I want to know how much that would cost, how much risk reduction it would achieve, and whether more risk reduction could be obtained by spending the money elsewhere.
I can dream, can’t I?
And you thought that the explanation was just partisan gridlock in Washington? According to a study that has been accepted for publication in Environmental Research Letters, it will be somewhere between 120 years and 550 years before losses caused by Atlantic tropical storms 
can be statistically attributed to anthropogenic climate change. It’s important to note that this study is not by climate skeptics; nor are the authors opposed to Congressional action. They are simply pointing out that it’s damn hard to attribute causation to specific storms or on short time scales. As they note in their conclusions:
Based on the results from our emergence time scale analysis we urge extreme caution in attributing short term trends (i.e., over many decades and longer) in normalized US tropical cyclone losses to anthropogenic climate change. The same conclusion applies to global weather-related natural disaster losses at least in the near future. Not only is short term variability not ‘climate change’ (which the IPCC defines on time scales of 30 to 50 years or longer), but anthropogenic climate change signals are very unlikely to emerge in US tropical cyclone losses at time scales of less than a century under the projections examined here.
Our results argue very strongly against using abnormally large losses from individual Atlantic hurricanes or seasons as either evidence of anthropogenic climate change or to justify actions on greenhouse gas emissions. There are far better justifications for action on greenhouse gases. Policy making related to climate necessarily must occur under uncertainty and ignorance. Our analysis indicates that such conditions will persist on timescales longer than those of decision making.
Do I wish that Congress had bitten the bullet and passed comprehensive climate change legislation? Of course. However, no one can dispute that there will be some significant short term costs, even if there are also opportunities in moving towards the new energy economy. It is difficult enough for Congress to look past the next election. Asking Senators and Representatives to look past the next century? Perhaps, instead of asking why legislation did not pass, we should take comfort from the fact that it got as close as it did.
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