The chaos unleashed by Aviall continues in a recent decision by the Seventh Circuit. In Bernstein v. Blankert, the Seventh Circuit revisited the issue whether a party having entered into an Administrative Order by Consent had a claim against other PRPs for cost recovery under Section 107(a) or for contribution under Section 113(f)(1). Offering a novel and entirely misguided conclusion, the court found that whether a party has a claim for cost recovery or for contribution hinges on whether that party had completed all of its obligations under the AOC. … More
Monthly Archives: December 2012
I Guess You Can’t Say That EPA Gives Lumps of Coal For Christmas Presents: It Does, However, Finalize Adjustments to the Boiler MACT Rule
Last Friday, just in time for the Christmas holiday, EPA finalized revisions to the Boiler MACT rule. As it has done with other significant rules, EPA basically fine-tuned the existing rule, responding to some specific comments, adding a smidgen of flexibility here, and a dash of extra time to comply over there. I think that EPA deserves credit for responding to the regulated community, while still imposing rules that provide significant benefits.… More
In Burlington Northern, the Supreme Court made clear that, in order to impose liability on a defendant as an “arranger” under Superfund for the sale of a product, the plaintiff must demonstrate that the defendant
must have entered into the sale of [the product] with the intention that at least a portion of the product be disposed during the transfer process.
Although courts do not seem thus far to have taken to heart the Supreme Court’s allocation discussion in Burlington Northern,… More
As I’ve previously discussed, MassDEP has been embarked on an effort – prompted by shrinking budgetary resources – to promulgate a package of regulatory reforms. While the package was announced in March 2012 and updated last October, we only saw the first set of actual proposed regulations last week, when MassDEP announced changes to both its asbestos regulations and its solid waste regulations. … More
Late last week, MassDEP announced release of the 2010-2020 Solid Waste Master Plan, subtitled “Pathway to Zero Waste.” James Collins might describe that as a Big Hairy Audacious Goal. I have nothing against Big Hairy Audacious Goals, but sometimes they are implemented through Big Hairy Audacious Regulations. Time will tell if that’s the case here.
The Master Plan goals are to reduce solid waste by 30% by 2020 and 80% by 2050 – not quite zero waste,… More
1. Because, in 2009, the District of Columbia Court of Appeals rejected EPA’s prior effort to keep the PM2.5 standard at 15 ug/m3.
A story in Tuesday’s BNA Daily Environment Report notes that several representatives of industry interests are asking EPA to hold off on issuing its much-anticipated vapor intrusion guidance until it can be subject to public comment. Apparently, the current draft was sent to regional offices – but not distributed to the public – for review. Someone at Inside EPA leaked it to Fox Rothschild and asked for comment. … More
This week’s auction of greenhouse gas allowances by the Regional Greenhouse Gas Initiative (RGGI) marked the 18th in that organization’s history. According to the market monitor report published today, only 53% (19.7 million) of the 37.5 million allowances offered for sale by the 9 state group sold at the required floor price of $1.93, all to electric generators regulated by the carbon dioxide-capping program. Participation in the auction remained low at 29 bidders,… More
Is There A De Minimis Defense To Liability in Superfund? The Supreme Court Indicated There Was; One District Court Says No.
Burlington Northern squarely decided that where environmental harm is divisible, an individual PRP can obtain apportionment of its liability and be assigned a specific percentage share; in such instances, there will be no joint and several liability. The possibility follows from Burlington Northern that a PRP which can establish divisibility of harm might be able to show that its percentage share of liability is so small that it effectively has a complete defense to liability.… More