On Tuesday, Chief Judge Robert Chambers ruled that Fola Coal Company violated the Clean Water Act by discharging mine waste with sufficiently high levels of conductivity to cause or materially contribute to impairment of Stillhouse Branch. The decision appears designed to be bullet-proof to any appeal. Judge Chambers thoroughly explained why the opinion of the defendant’s expert should not be given “great weight,” why the plaintiffs’ experts were reliable,… More
Monthly Archives: January 2015
General Permits Are Also Entitled to a Permit Shield
On Tuesday, the 6th Circuit Court of Appeals held that the “permit shield” provisions of the Clean Water Act protected ICG hazard from Sierra Club claims that effluent from ICG Hazard’s Thunder Ridge mine caused exceedances of Kentucky water quality criteria for selenium. Thunder Ridge is covered by a general permit, not an individual site permit, and the Sierra Club argued that the shield should not apply. … More
Coming Soon to a Settlement Near You: Next Generation Compliance
In a memorandum issued earlier this month, EPA Assistant Administrator for Enforcement Cynthia Giles encouraged use by EPA staff of “Next Generation Compliance Tools” in civil settlements. Some of the tools are more “next generation” than others, but they all bear watching by the regulated community. The specific tools highlighted in the Giles memorandum include:
- Advanced monitoring, including real-time monitoring of ambient pollution levels at the facility fence-line or in the immediate neighborhood
- Third party compliance verification
- Electronic reporting
- Increased public availability of compliance data
To me,… More
The Need For Expert Evidence To Make Out An Innocent Landowner Defense Under CERCLA
As every litigator knows, evidence almost always tells a story that is untidy and riddled with loose ends. This was illustrated by a recent innocent landowner case in California — Coppola v. Smith. There, a company had purchased land in 1995 without knowledge that it had been contaminated with perchloroethylene (PCE) from a dry cleaning operation in the 1950s and 1960s. When the company was sued under contribution by a nearby dry cleaner for contributing PCE to to regional groundwater contamination, … More
No Arranger Liability For Sale of A New Hazardous Substance
Relying on the 2009 Supreme Court decision in Burlington Northern, the Fifth Circuit recently overtuned a CERCLA liability finding against a supplier of perchloroethylene. Vine Street LLC v. Borg Warner Corp. involved the familiar CERCLA issue whether the seller of a hazardous substance can be liable for its disposal by the buyer. The lower court, in a pre-Burlington Northern decision,… More
It’s All Connected: EPA Finally Determines that the Science Supports an Expansive Definition of Waters of the United States
On Thursday, EPA issued its final report on Connectivity of Streams & Wetlands to Downstream Waters: A Review & Synthesis of the Scientific Evidence. The Connectivity report is intended to support EPA’s rule clarifying the definition of waters of the United States. I know that groups on all sides will be providing their two cents, but of this I am sure enough to abandon my usual reluctance to speculate: This report will be more than sufficient to insulate EPA’s final rule from judicial challenge. … More
What is the Social Cost of Carbon? And Who Bears Those Costs?
As I noted last year, there has been significant criticism of the Integrated Assessment Models used to calculate the social cost of carbon. An article published this week in Nature Climate Change (not free), attempts to respond to some of those criticisms. The result is a social cost of carbon that might be as high as $220/ton of CO2. The authors thus conclude that,… More
Is a Clean Energy Standard Coming to Massachusetts? We’ll See What the New Governor Thinks
Last week, the Massachusetts Department of Environmental Protection proposed to implement a “Clean Energy Standard,” which would require that, by 2020, at least 45% of electricity sales come from sources which have “clean energy attributes.” The required percentage would increase to 49% by 2024, and MassDEP would then have to define percentages going forward at least 10 years in advance, with the caveat that the required percentage can never decrease.… More
EPA Extends The Schedule For Issuing Its Power Plant Carbon Rules
As most readers know, EPA has extended its schedule for issuing its rules addressing GHG emissions from both existing, and new and modified, power plants. EPA expects to issue the rules in the Summer of 2015. Only time will tell whether the agency makes the new date.
For those looking for a handy summary of actions to date and EPA’s schedule going forward, EPA has provided a short Fact Sheet which sets out the relevant dates for the various rules.… More
Not a Good Day For Cape Wind: NStar and National Grid Terminate the Power Purchase Agreements
According to today’s Boston Globe, both NStar and National Grid have terminated their power purchase agreements with Cape Wind, citing the failure by Cape Wind to meet a December 31, 2014 deadline to obtain financing and begin construction. Cape Wind is asserting that the utilities may not validly terminate the PPAs, arguing that the protracted litigation against the project excuses Cape Wind’s obligation to meet the December 31 date.… More
With Treatment, Less May Be More
As environmental regulators look more and more to scientific experts to devise treatments for contaminated sites, it might behoove those regulators to consider the import a a recent medical study which dramatically suggests that problems may not always be best addressed by the application of aggressive treatments devised by experts. That study evaluated mortality rates among cardiac patients hospitalized during the period when national cardiology conventions were being held. … More