On Thursday, EPA finalized revisions to the Mercury and Air Toxics Standards, or MATS (also known as “Utility MACT”). The most significant change was to revise the mercury emissions standard from 0.0002 pounds per gigawatt-hour to 0.003 pounds per gigawatt-hour. The change was made in response to comments suggesting that the more stringent standard simply wasn’t attainable. EPA notes that attainment of the 0.003 lb/GWh will still require installation of the same types of pollution control equipment.… More
Monthly Archives: March 2013
On Thursday, in United States v. DTE Energy Company, the 6th Circuit Court of Appeals revived EPA’s enforcement action against DTE energy for alleged NSR violations at DTE’s Monroe Power Plant. As the dissent notes, it may be a hollow victory.
The facts trace a familiar NSR enforcement case trajectory. In 2010, DTE commenced a $65 million maintenance project at Monroe,… More
For the first time in CERCLA’s history, a court has concluded that a Superfund claim was barred by the “act of war” defense. In that case, In Re September 11 Litigation, the judge ruled that a property owner a block from Ground Zero could not recover the costs of cleaning up dust on his building from the collapse of the World Trade Center towers because the dust resulted from an act of war. … More
Earlier this month, the Supreme Judicial Court (SJC) issued its decision in Mahajan v. DEP, holding that the Boston Redevelopment Authority’s (BRA) proposed redevelopment of Long Wharf in Boston is not subject to Article 97 of the Amendments to the Massachusetts Constitution. Among other things, Article 97 protects park lands from being disposed of or used for other purposes, absent a supermajority vote from both branches of the Legislature.… More
EPA Loses Another Battle in the War Over Guidance: The Eighth Circuit Vacates EPA Policies on Mixing Zones and Bypasses
On Monday, EPA lost another battle in the war over guidance. In Iowa League of Cities v. EPA, the 8th Circuit Court of Appeals vacated two letters that EPA had sent to Senator Charles Grassley concerning biological mixing zones and bypass of secondary treatment units at POTWs (also referred to as “blending”, because the POTWs blend wastewater that has not be subject to biological secondary treatment with wastewater that has,… More
Logging Road Runoff Does Not Require an NPDES Permit: The Supreme Court (For Now) Defers to EPA’s Interpretation of Its Own Regulations
Yesterday, in Decker v. Northwest Environmental Defense Center, the Supreme Court ruled that runoff from logging roads does not constitute a discharge from a point source that requires an NPDES permit. The decision upholds EPA’s interpretation of its own regulations and overturns – what a surprise! – a 9th Circuit decision which had held that permits were necessary for logging runoff.
While EPA got the result that it wanted here,… More
The Intersection of Subrogation and Environmental Law — The Ninth Circuit’s Tyranny of Logic over Common Sense
In a decision that exalts casuistry over common sense, the Ninth Circuit recently held that an insurer who reimbursed $2.4 million in CERCLA response costs to its policyholder had no subrogation rights against the potentially responsible parties that actually caused the contamination in the first place. That holding turns upside down the most basic principles of insurance law.
Chubb Custom Insurance Company v. Space Systems/Loral involved an assisted-living facility which was built on a former manufacturing facility that had been operated and allegedly contaminated with VOCs by Ford. … More
Not a Shining Moment For Congress: Two Leading Economists Note the “Sordid History” of Cap-and-Trade Legislation
I have previously blogged about how strange our politics has become, when cap-and-trade programs, previously touted by conservatives and viewed skeptically by environmentalists as a “license to pollute,” somehow become for conservatives the poster child of big government programs. It is nice when economists as respected as Dick Schmalensee and my friend Rob Stavins make the same point. I’m not sure I can put it much more succinctly than this:
It is truly ironic that conservatives chose to demonise their own market-based creation.… More
The Fifth Circuit Rejects EPA’s Disapproval of Alabama’s Opacity Regulation: Do We Blame EPA, DOJ, or Two Judges?
On Wednesday, in Alabama Environmental Council v. EPA, the Fifth Circuit Court of Appeals rejected EPA’s 2011 disapproval of Alabama’s opacity regulation. The case involves relatively obscure provisions of the Clean Air Act, but the decision nonetheless provides a number of – abject – lessons.
First, a short history. In 2003, Alabama adopted a revision to its opacity regulations. The revision allowed exceedances of the opacity standard,… More
In addition to its MCP package, MassDEP has also released its formal regulatory reform proposals for its water, wastewater, wetlands, and waterways programs. As with the MCP proposal, the water package took longer than it should have, and may not be perfect, but is definitely worth the wait. MassDEP has provided two separate helpful summaries of the changes, one concerning wastewater issues and the other concerning wetlands,… More
On Friday, MassDEP issued the formal public comment draft of its package of regulatory reforms under the Massachusetts Contingency Plan. Overall, it’s certainly a good package, which will facilitate getting to an endpoint with reduced transaction costs, but no decrease in environmental protection. It’s not perfect (and you have until May 17, 2013 to provide comments to help make it more perfect), and it took far too long,… More
Exactly a year ago, I posted a blog that argued that the decisions on Superfund liability for the sale of usable product could be distilled down to an “unstated rule” — a party will be held liable as having intended to arrange for the disposal of a hazardous substance if it sells a waste that cannot be used or won’t be used as delivered without first causing the release of a hazardous substance. … More