CERCLA the Wagons, the AOCs are Coming!!!

Pillsbury Winthrop Shaw Pittman LLP
Anthony B. Cavender

November 12, 2015

Contractors should beware that the Sixth Circuit’s guidance on CERCLA-related topics continues to be murky, including, in particular, what constitutes a CERCLA settlement triggering the running of the 3-year limitations period for contribution claims. On November 5, 2015, the U.S. Court of Appeals for the Sixth Circuit issued a ruling in the case of Florida Power Corp., dba Progress Energy Florida, Inc., v. FirstEnergy Corp., interpreting two Administrative Orders by Consent for Remedial Investigation/ Feasibility Study (AOCs). The Court of Appeals held that the AOCs were not CERCLA settlements and, as a result, Florida Power’s contribution claims were not untimely. There is a significant dissent in this case, and all of the judges appear to agree that the Sixth Circuit’s decisions in this area have not provided adequate guidance to the regulated community.

Florida Power’s predecessor owned and operated two coal gasification plants in Florida which became subject to the cleanup and remedial investigation provisions of CERCLA (a.k.a a Superfund). Florida Power entered into separate AOCs and also paid EPA’s past response costs. EPA issued three Records of Decision for one site and a Consent Decree requiring the agreed cleanup was approved by the local federal court in 2009. EPA’s action on the second site is apparently still awaiting final agency action.

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New York State Department of Environmental Conservation Revises Regulations Governing Bulk Storage Tanks

Beveridge & Diamond PC
John H. Paul, Stephen L. Gordon and Michael G. Murphy

October 29, 2015

The New York State Department of Environmental Conservation (NYSDEC) issued revised regulations, effective October 11, 2015, governing the management and bulk storage of petroleum and hazardous substances. Corresponding revisions to used oil management regulations will be effective on November 10, 2015, and operator training requirements must be implemented by October 11, 2016.

Petroleum Bulk Storage and Used Oil. Prior to these revisions, NYSDEC’s Petroleum Bulk Storage (PBS) regulations were distributed across three different regulatory parts. They did not include changes made in 2008 to New York’s Environmental Conservation Law and did not correspond to federal regulations at 40 C.F.R. Part 280 governing underground storage tanks (USTs).

The revised PBS regulations are assembled in one part (6 N.Y.C.R.R. Part 613), and clarify requirements pertaining to state- and federally-regulated USTs and above-ground storage tanks (ASTs). The new regulations include new or more detailed requirements relating to:

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To Mitigate or Not to Mitigate: No Longer a Question for Environmental Reviews?

Beveridge & Diamond PC
James M. Auslander and Fred R. Wagner

November 10, 2015

Even the casual college football observer has probably seen by now the wild final play of the Duke-Miami game on October 31. After the game ended, it was determined that Miami literally stole the win as a result of referee errors. The referees were suspended, apologies were issued, but the game result stuck. As a Duke alum, this “mitigation” outcome was of little solace.

Perhaps President Obama, an avid sports fan, was inspired by this lack of appropriate “mitigation.” Last week, the White House and the U.S. Department of the Interior each issued guidance on how certain federal agencies should approach mitigation in their environmental reviews and permitting. Though this policy is not legally binding like a rule or statute, its significance on all types of actions on federal and private lands cannot be understated. While on some levels, the Presidential Memorandum and DOI guidance simply echo the “holy trinity” of mitigation (“avoid, minimize, mitigate”), they arguably go much further. The Administration has added substantive elements to procedural requirements, and endorsed ubiquitous and strict avoidance and compensatory measures to offset development proposals. This policy has the potential to result in fewer approvals and greater delays. In that regard, this new guidance could represent a “lateral” from other Administration efforts (many of which have been covered in this space) to expedite environmental decisions and actions.

How might the guidance affect you? We offer five possible outcomes and related questions:

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Count ME In

Verrill Dana LLC
Matt Todaro

Environmental Law Blog:

November 5, 2015

Originally posted on www.environmentallawupdate.com

Count Maine “in” as one of the 18 states filing a motion to intervene to defend the federal Environmental Protection Agency’s (“EPA” or “Agency”) Clean Power Plan (“Rule”).   A coalition including 24 states wasted little time filing suit against the much-anticipated final Rule after it was posted in the Federal Register on October 23.  The coalition alleges that the Rule is an overreach of the authority delegated to the Agency by Congress and more specifically, Section 111(d) of the Clean Air Act cannot be used to regulate greenhouse gases.  The petitioners are asking the court to stay the Rule while the suit is pending and ultimately, invalidate it as ultra vires.

In Maine, the final Rule will require the State to reduce its greenhouse gas emissions by 10.8 percent by 2030 from 2012 levels, a reduction from the 14 percent target set forth in the initial draft.  This reduction should not be difficult for the State to achieve given that its fleet of power plants infrequently burns coal, the State is already a member of the Regional Greenhouse Gas Initiative (“RGGI”), and it possesses access to an abundance of clean energy sources such as wind, solar, and tidal power.

Stay tuned to this suit which is undoubtedly destined for certiorari.

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