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The Environmental
Protection Agency published a supplemental
proposed rule March 26 that would revise
the definition of solid waste to exclude certain hazardous secondary materials
from regulation under hazardous waste provisions of the Resource Conservation
and Recovery Act (72 Fed. Reg. 14,172).
The agency first
announced the proposal March 16 (52 DEN A-1, 3/19/07
).
"The purpose of
this proposal is to encourage safe, environmentally sound recycling and resource
conservation and to respond to several court decisions concerning the definition
of solid waste," EPA said in the Federal Register notice.
The agency said it
also is seeking comments on factors to be used in determining whether the
recycling of these materials is legitimate.
Such "hazardous
secondary materials" proposed for RCRA exclusion
include spent materials, listed sludges, and
listed byproducts that are generated and legitimately reclaimed and are
handled in non-land-based units, such as tanks, containers, and containment
buildings, according to the proposal.
Entities
potentially affected by the proposal include about 4,600 facilities in 530
industries in 17 economic sectors that generate or recycle hazardous secondary
materials that are currently regulated as RCRA Subtitle C hazardous wastes,
according to EPA.
If promulgated, EPA
said the proposed rule is expected to result in regulatory and materials
recovery cost savings to these industries of approximately $107 million per
year.
The proposal
contains provisions for assessing the legitimacy of hazardous material recycling
practices and clarifies that "legitimate recycling" does not include treatment
or disposal of materials under the guise of recycling, commonly referred to as
sham recycling.
Bob Elam, director
of regulatory and technical affairs with the American Chemistry Council, told
BNA March 26 that while ACC officials need to review the proposed rule, the
council's initial reaction is that it will promote more legitimate recycling.
In reviewing the
proposal, Elam said the council will consider what conditions EPA is proposing
to place on materials to be excluded from the definition of solid waste.
Howard Roitman,
deputy director of the Association of State and Territorial Solid Waste
Management Officials, declined to comment on the proposal. State officials are
just beginning to review it, he told BNA March 26.
Comments on the
supplemental proposed rule are due May 25. They may be sent by e-mail to RCRA-docket@epa.gov,
Attention Docket ID No. EPA-HQ-RCRA-2002-0031.
The Environmental Protection Agency is moving to regulate hazardous
pharmaceuticals under its hazardous waste rules
in order to ensure proper disposal so the drugs do not enter U.S. waters through
wastewater effluent, an agency official said March 23.
EPA will
amend its universal waste regulations
under the Resource Conservation and Recovery Act
to include pharmaceutical products,
according to Ed Ohanian, director of the Health and Ecological Criteria Division
in the agency's Office of Water.
Ohanian made his
remarks at a congressional briefing on compounds of emerging concern that are
finding their way into lakes, streams, and rivers. It was organized by the Water
Environment Federation.
Ohanian was
describing EPA's regulatory and voluntary efforts to prevent the disposal of
pharmaceuticals, cosmetics, and household chemicals into the environment.
EPA's universal
waste regulations at 40 C.F.R. §273 streamline hazardous waste management
standards for federally designated "universal wastes," which include batteries,
pesticides, mercury-containing equipment such as thermostats, and lamps,
according to the agency. The regulations govern the collection and management of
the widely generated wastes, thus facilitating environmentally sound collection
and proper recycling or treatment, according to EPA.
The purpose of the
rules is to reduce hazardous waste in the municipal solid waste stream by making
it easier for universal waste handlers to collect these items and send them for
recycling or "proper" disposal.
Ohanian
did not say when the agency would
propose a rule to include pharmaceuticals under the universal waste regulations.
"We are working on it now," he said.
In February,
Ohanian said, the White House released
guidelines on the proper disposal of prescription drugs to prevent misuse
of the drugs and to prevent water and soil pollution (36 DEN A-7, 2/23/07
).
The guidelines,
Proper Disposal of Prescription Drugs, provide five recommendations for
handling drugs, including flushing them down the toilet, but only when the Food
and Drug Administration specifies it can be done safely. The guidelines were
developed by the White House Office of National Drug Control Policy, along with
the Department of Health and Human Services and EPA.
Also due out in
December 2007 is a research strategy compiled by a White House task force
charged with developing an integrated approach to identify research needs for
pharmaceuticals and personal care products that are entering waterways, Ohanian
said.
Studies
Expected Soon
Aside from
regulating hazardous pharmaceutical drugs under the universal waste rule,
Ohanian said the Office of Water is working on three studies that will help the
agency decide whether to regulate such
compounds under the Clean Water Act.
Under the water
law, EPA can establish water quality criteria for pollutants and regulate
discharges from water treatment plants, among other actions. Ohanian did not
indicate what action, if any, the agency might take.
According to
Ohanian, the Office of Water expects to complete in December a study of fish
tissue for the presence of 37 pharmaceuticals found in discharges from five
treatment plants. Next year, it will finish a study of discharges from 10
publicly owned wastewater treatment plants to decide whether to require
treatment of additional compounds, including pharmaceuticals. In December 2008,
the office will complete a biosolids sludge study that tests for the presence of
75 contaminants and the risk they pose to the environment.
Ohanian's remarks
were underscored by Dana Kolpin, chief of the U.S. Geological Survey's toxic
substances hydrology program, who told the briefing that the USGS has
"definitive" evidence from laboratory experiments in Boulder, Colo., and other
places around the country that chemical compounds found in pesticides,
agricultural runoff, stormwater runoff, household detergents, and drugs that
pass through wastewater treatment plants are responsible for "feminizing" male
fish downstream of such plants.
"Whether the
feminizing of male fish affects populations as a whole is another whole field of
study and is beyond my expertise," Kolpin told BNA after the briefing. "The
estrogenic effect is occurring downstream of wastewater plants."
An advance
notice of proposed rulemaking posted March 23 by the Environmental Protection
Agency seeks public comment on data the agency plans to use to assess the risks
presented by hazardous air pollutant emissions from
22 industrial sectors.
The agency plans to use the
information as part of a streamlined review of the residual risk presented by
hazardous air pollutant emissions from these sources, and the technology that
may allow them to be reduced.
According to an EPA fact
sheet, the agency intends to combine risk and technology reviews for several
industry sectors into single regulatory actions to promote administrative
efficiency. EPA will, however, make decisions on any need for further emission
reductions on a sector-by-sector basis, the agency said.
William Wehrum, EPA
assistant administrator for air and radiation, told BNA about the initiative in
December 2006 (9 DEN B-5, 01/16/07
).
EPA
is in the process of reevaluating emission standards for hazardous air
pollutants it has issued during the past 15 years.
The Clean Air Act required
those standards to be based on maximum achievable control technology, defined as
the average emissions of the best-performing 12 percent of sources in a single
source category.
The act also requires EPA to
review any health risk remaining from hazardous air pollutant emissions from a
source category after those standards were issued and tighten the standards if
the emissions pose an unacceptable health risk.
The data presented by EPA
March 23 will be used in this review.
The
22 categories covered by the data are: mineral wool production, aerospace manufacturing and rework
facilities, marine tank vessel loading operations, natural gas transmission and
storage, oil and natural gas production, petroleum refineries, pharmaceuticals
production, epichlorohydrin elastomers production, Hypalon(TM) production,
nitrile butadiene rubber production, polybutadiene rubber production,
styrene-butadiene rubber and latex production, acrylic-butadiene-styrene
production, methyl methacrylate-acrylonitrile-butadiene-styrene production,
methyl methacrylate-butadiene-styrene production, nitrile resins production,
polyethylene terephthalate production, polystyrene production, styrene-acrylonitrile
production, primary aluminum reduction plants, printing and publishing industry,
and shipbuilding and ship repair operations.
EPA will take comment on the
data for 60 days following publication of the notice in the Federal Register.
Comments should be identified by Docket ID No. EPA-HQ-OAR-2006-0859 and may be
submitted at
http://www.regulations.gov. Follow the online instructions for
submitting comments.
Information on the notice
is available at
http://www.epa.gov/ttn/oarpg/t3/fact_sheets/RTRphsIIanpr.html.
In fiscal
year 2006, the Environmental Protection Agency's enforcement office
conducted more than 23,000 compliance
inspections, initiated more than 305
criminal cases, and performed more than
352 civil investigations, according to a report from the office.
EPA's Office of Enforcement
and Compliance Assurance also resolved 1,475
voluntary disclosures in fiscal 2006, which ended Sept. 30, 2006, it said
in FY 2006 OECA Accomplishments Report, released March 21.
The report aims to provide
results on the entire spectrum of the office's enforcement activities, including
compliance assistance, inspections, and environmental justice, EPA said.
As part of civil enforcement
settlements, violators in 220 civil cases agreed to implement supplemental
enforcement projects worth more than $78 million, the report said.
EPA's enforcement office in
fiscal year 2006 obtained private party and federal agency commitments for
cleanup and cost recovery that exceeded $555 million, the report said.
While OECA releases
"accomplishments" information on enforcement actions for each fiscal year, the
information is not released as a report every year.
The office also releases a
separate, annual report focusing solely on its traditional enforcement figures.
In its November 2006 enforcement report, EPA said it had obtained commitments
from industry, governments, and other regulated parties to reduce pollution by
nearly 900 pounds and invest almost $4.9 billion in pollution control (221 DEN
A-10, 11/16/06
).
The enforcement office's
previous accomplishments report, Environmental Results Through Smart
Enforcement: Fiscal Year 2002, was released in June 2003 and covered FY 2002
activities. Comparable figures for the FY 2002 and FY 2006 activities are not
always provided in the two reports, and EPA officials were not available for
comment. Less extensive information on enforcement accomplishments for each of
fiscal years 2003 through 2005 is available on the OECA home page.
In
the FY 2006 accomplishments report, EPA said it unveiled an easy-to-use website
in January 2006 for the public to report potential environmental violations. As
of mid-November 2006, the agency said it had received about 4,500 tips, with as
many as 500 of these addressing possible criminal violations (232 DEN A-4,
12/4/06
).
State Data Included
for First Time
Between 2000-2003, the
number of states using enforcement mechanisms, including collection of fines and
penalties, increased. Field citations were up 203 percent over that period, and
stipulated penalties were up 178 percent, according to information on state
enforcement included for the first time in the FY 2006 OECA accomplishments
report.
Between 1995 and 2003,
penalties assessed by states totaled more than $892 million--an increase of 49
percent over the period, according to data in the report provided by the
Environmental Council of the States.
In the period 2000 through
2003, violators agreed to perform supplemental enforcement projects totaling
$96.2 million and were assessed $62.3 million in penalties. From 1995 through
2003, states secured $171.3 million under enforcement settlements, the report
said.
The FY 2006 OECA
Accomplishments Report and Environmental Results Through Smart Enforcement:
Fiscal Year 2002 are available at
http://cfpub.epa.gov/compliance/resources/reports/accomplishment/details.cfm.
Information on
enforcement accomplishments for FY 2003 through 2005 is available at
http://epa.gov/compliance/data/results/annual/fy2006.html.
A refinery
explosion and fire that killed 15 workers and injured 180 more "was caused by
organizational and safety deficiencies at all levels of the BP Corporation," the
final report released March 20 analyzing the root causes of the blast found.
The report by the U.S.
Chemical Safety and Hazard Investigation Board on the March 23, 2005, explosion
and fire at the BP North America Texas City, Texas, refinery details the safety
lapses that led to the explosion and culminates the board's two-year
investigation into the matter.
The report noted that the
plant was previously owned by Amoco, which merged with BP in 1999. The Texas
City plant is the third largest oil refinery in the United States.
The CSB report recommended
that BP appoint a member with expertise in process safety to its board of
directors. The report also called for the company's senior executives to
establish an improved incident reporting program and use new indicators to
measure safety performance.
The fatal incident at Texas
City happened during the highly hazardous startup of an isomerization (ISOM)
unit following maintenance. A raffinate splitter tower was overfilled with
liquid hydrocarbons causing pressure relief devices to open. The hydrocarbons
were directed to a blowdown stack where they erupted in a flammable liquid
geyser that vaporized. The vapor cloud was ignited by an idling diesel pickup
truck.
In August 2005, CSB issued
an urgent recommendation to the oil company's parent, BP Global, that the
company establish an independent panel to review the safety management and
culture issues at its five North American refineries.
The company established the
BP Refineries Independent Safety Review Panel, informally known as the Baker
Panel for its chairman, former Secretary of State James A. Baker III. In a
report released Jan. 16, the panel found that BP had not established safety as a
core value (10 DEN A-11, 1/17/07
).
In September 2005, OSHA
fined BP Products North America $21.36 million for safety and health violations.
The fine was the largest fine levied in OSHA's history.
The chemical safety board
announced its preliminary findings in October 2005, identifying six key safety
issues, including the placement of occupied trailers in unsafe locations. On
June 30, 2006, CSB released information on trailer blast damage.
BP issued its own report in
December 2005, citing "confusion over roles and responsibilities" as underlying
causes of the blast.
Safety Problems, Cost
Cutting
The CSB final report
presents numerous precursors to the accident,
including safety procedures that were not
followed, equipment that was not repaired,
and safety tests that were not completed.
The report also found serious lapses in
communication.
The report said that BP
Group executive management knew of the process safety problems at the Texas City
refinery before the March 2005 incident. Cost
cutting at the plant, first by Amoco and later by BP, "left
the Texas City refinery vulnerable to a catastrophe," the report said.
According to the report, BP
executives in 1999 wanted the Texas City refinery to cut fixed costs by 25
percent. The cut affected training and eliminated all non-OSHA required training
for the "short term."
The
lack of training at the refinery was a
contributing issue to the explosion, the report said: "The hazards of
unit startup, including tower overfill scenarios, were not adequately covered in
operator training."
Between 1998 and 2004, Texas
City refinery's learning and development department's budget was cut in half
from $2.8 million to $1.4 million. Staffing
in the department was cut from 28 to eight.
In addition, BP adopted computer-based training
to save money. The CSB report said that such training
focuses on memorizing facts, "not
troubleshooting unusual events."
The board's final report
also found that staffing was inadequate before the ISOM unit was restarted and
that the operators involved in the process were
fatigued, which "likely contributed to
the incident by impairing operator performance."
BP had
no policy to address fatigue, the report
said, and operators were expected to work a
12-hour, seven-day-a-week turnaround schedule.
A major component of the
refinery's approach to safety, the CSB report said, was behavioral, which
focused on workers' actions.
The company
did not "typically examine
safety systems,
management activities, or any
process safety-related activities," the
report said.
OSHA Capability
'Insufficient'
The CSB report said that
in the 20 years before the explosion, there were at least 10 incidents at the
site resulting in 10 deaths. Over that period, OSHA issued citations for three
willful and 82 serious violations carrying proposed penalties of $270,255. The
agency actually collected $77,860 in penalties.
OSHA conducted one planned
process safety management inspection of the refinery in 1998, the report said.
All other agency inspections were unplanned, "the result of an accident,
complaint, referral from another agency, or an inspection of another company,"
according to the report.
The CSB report said that
OSHA's main tool for enforcement of PSM is program quality verification (PQV)
inspections, but such inspections are infrequent.
"OSHA's
national focus on inspecting facilities with high injury rates, while important,
has resulted in reduced attention to preventing less frequent, but catastrophic,
process safety incidents such as the one at Texas City," the report said.
"OSHA's capability to inspect highly hazardous
facilities and to enforce process safety regulations is insufficient;
very few comprehensive process safety
inspections were conducted prior to the ISOM incident and
only a limited number of OSHA inspectors have
the specialized training and experience needed to perform these complex
examinations."
According to the report, the
job safety agency needs to strengthen
enforcement of process safety management through comprehensive, planned
PQV inspections. CSB added that OSHA needs additional resources and inspector
training as well.
The
board recommended that OSHA:
identify
facilities that are at greatest risk of a catastrophic accident by using available indicators of process safety performance and
information gathered by the Environmental Protection Agency under its risk
management program;
conduct
comprehensive inspections,
such as those under the PQV program, at facilities identified as presenting the
greatest risk;
establish
the capacity to conduct more comprehensive PSM inspections by hiring or developing a sufficient cadre of highly trained and
experienced inspectors; and
expand
the PSM training offered
to inspectors at the agency's National Training Institute.
The board also
recommended that OSHA amend the process safety
management standard to require that a "management of change review" be
conducted for organizational changes that might affect process safety.
Recommendations to
Texas City, Others
The board recommended
that the BP Texas City facility:
evaluate refinery process
units to ensure that critical process equipment is safely designed;
ensure that instrumentation and process equipment necessary
for safe operation is properly maintained and
tested;
work with the United Steelworkers and USW Local 13-1 to
establish a joint program promoting the
reporting, investigation, and analysis of incidents, near-misses, process
upsets, and major plant hazards without fear of retaliation;
improve
the operator training
program;
require additional board operator staff during the startup of
process units, and ensure that hazard reviews
address staffing levels during abnormal conditions such as startups,
shutdowns, and unit upsets;
require
knowledgeable supervisors or technically trained personnel to be present during especially hazardous operation phases such as unit
startup; and
ensure that process startup
procedures are updated to reflect actual process conditions.
CSB recommended that the
American Petroleum Institute and the USW work together to
develop two new consensus American National
Standards Institute standards that:
create performance indicators for process safety in the
refinery and petrochemical industries that identify leading and lagging
indicators for nationwide public reporting as well as indicators for use at
individual facilities; and
develop
fatigue prevention guidelines
for the refining and petrochemical industries, that, at a minimum,
limit hours and days of work and address
shift work.
A link to the full
text of the CSB report will be available at
http://www.chemsafety.gov/index.cfm.
The Environmental
Protection Agency published a final rule March 12 that modifies a number of
water sampling and analysis procedures under the Clean Water Act and Safe
Drinking Water Act (72 Fed. Reg. 11,200).
The list of revised
and new methods is intended to provide state and local governments, industry,
and municipalities with a greater choice when analyzing microbial, chemical, and
radiological contaminants in water, according to EPA.
"The addition of
new and updated methods to the wastewater and drinking water regulations
provides increased flexibility to the regulated community and laboratories in
the selection of analytical methods," the final rule said.
EPA proposed
changes to the current testing methods in August 2003 and April 2004 based on
information from voluntary standards-setting bodies such as AOAC International
and ASTM International (65 DEN A-7, 4/6/04
).
The final rule will take effect April 12.
Under the Clean
Water Act, the rule amends EPA's Sewage Sludge Use and Disposal Regulations at
40 C.F.R. §122 to clarify the use of analytical methods, correct inconsistencies
in sampling requirements, and add E. coli and Enterococci to the list of
parameters for testing.
The rule also
amends the Guidelines Establishing Test
Procedures for the Analysis of Pollutants at 40
C.F.R. §136 to approve new methods submitted by interested parties,
correct errors to tables, clarify method requirements, and withdraw outdated
methods.
The rule amends the
effluent guidelines under the pesticide
chemicals category at 40 C.F.R. §455 to correct a table and replace a
method. It also amends the effluent guidelines for the
pulp, paper, and paperboard point sources at 40
C.F.R. §430 to approve a new method.
Under the Safe
Drinking Water Act, the rule amends the
National Primary Drinking Water Regulations at 40 C.F.R. §141 to approve
new methods submitted by interested parties, standardize methods, and clarify
method requirements. The rule also amends the National Secondary Drinking Water
Regulations at 40 C.F.R. §143 to approve new testing methods.
EPA Formally Issues Proposed, Final Rules
Addressing New Source Review Requirements
The Environmental Protection
Agency formally proposed revisions March 8 to rules that allow industrial
facilities to determine whether they need to keep records of increases in air
emissions that could require them to install pollution controls (72 Fed. Reg.
10,445).
The proposal, published in the
Federal Register, sets out two
options that plants could take for determining whether they need to maintain
records under EPA's new source review program.
EPA's preferred option is to
require emissions recordkeeping if a change to a plant is projected to increase
emissions of a particular pollutant by at least 50 percent of what EPA considers
a "significant" increase.
The agency released the
proposal informally March 1. Comments will be accepted until May 7 (41 DEN A-1,
3/02/07
The proposal was one of two
rulemaking notices published March 8. In a final rule published the same day,
EPA updated provisions in regulations known as "Appendix S" that govern the
application of new source review in areas that are not attaining federal air
quality standards and in which states have not adopted state implementation
plans for attaining the standards (72 Fed. Reg. 10,367).
EPA regulations state that new
source review is triggered when a plant modification results in a significant
emissions increase. At that point, plants must install emissions controls.
Definitions for significant
increases for various pollutants are at 40 C.F.R. 51.165(a)(1)(x) and 40 C.F.R.
52.21(b)(23)(i).
The rules specify that
significant increases are 100 tons per year for carbon monoxide and 40 tons per
year for nitrogen oxides, sulfur dioxide, and volatile organic compounds (VOCs).
An alternative option proposed
by EPA for recordkeeping purposes would require sources to retain records if a
modification to a plant increases a source's potential to emit above the level
for significant increases.
Potential to emit is the
emissions level that would be reached if a plant operated continuously at full
capacity. Since plants rarely operate at that level, plants rarely reach
emissions levels matching their potential to emit.
Proposal
Responds to Court Decision
The proposed rule responds to
a decision issued in 2005 by the U.S. Court of Appeals for the District of
Columbia Circuit that ordered EPA to rewrite the recordkeeping rules at 40 C.F.R.
Part 51, which were promulgated in 2002. Those rules allow companies to forgo
emissions recordkeeping if they determine that there is "no reasonable
possibility" their emissions will trigger new source review requirements (New
York v. EPA, 413 F.3d 3, 38-40, 60 ERC 1791 (D.C. Cir. 2005)).
EPA said the new proposal
would address the court's concerns by establishing specific conditions under
which records must be kept.
The final rule published by
the agency addresses Appendix S of 40 C.F.R. Part 51, which governs new source
review enforcement in areas that have been designated nonattainment areas for
EPA air quality standards, but for which states have not yet adopted state
implementation plans (SIPs) for attaining the standards. Once a state has
adopted a SIP for a nonattainment area, Appendix S no longer applies.
According to EPA, the final
rule provides that application of new source review under Appendix S will be
consistent with that for areas with SIPs approved by EPA. These SIPs follow the
new source review changes adopted by EPA in 2002. Among the provisions that now
will apply in Appendix S areas is one to base emissions increase determinations
on whether an actual emissions increase is projected to occur as a result of a
plant change, rather than on an increase in the potential to emit.
The final rule is effective
May 7.
Comments on the proposed rule
can be submitted to
http://www.regulations.gov. They should be identified by docket ID No.
EPA-HQ-OAR-2001-0004.
The Sixth Circuit
Court of Appeals Holds that NSR Violations Are Continuing Violations and thus
the Federal Five-Year Statute of Limitations Does Not Apply
RALEIGH, N.C.--A
lawsuit against the Tennessee Valley Authority that alleges violations of Clean
Air Act rules is not barred by the statute of limitations because those
potential breaches of air pollution control requirements are ongoing, a federal
appeals court ruled March 2 (National Parks
Conservation Ass'n v. Tennessee Valley Authority, 6th Cir., No.
05-6329, 3/2/07).
According to the
U.S. Court of Appeals for the Sixth Circuit, if violations of the Clean Air
Act's new source review provisions have indeed occurred, they would continue
every day the plant at issue operated. Therefore, the appeals court said, the
five-year statute of limitations for federal offenses does not apply.
In making its
ruling, the appeals court overturned a decision by the U.S. District Court for
the Eastern District of Tennessee that dismissed in March 2005 a lawsuit brought
by conservation and environmental groups claiming TVA violated new source review
requirements at its Bull Run power plant in Clinton, Tenn. (National
Parks Conservation Ass'n v. TVA, E.D. Tenn., No. 01-0071, 3/11/05).
New source
review provisions of the Clean Air Act require major stationary air pollution
sources to install controls when they make plant modifications that increase
emissions. Under new source review, facilities in areas that are in attainment
of EPA air quality standards must obtain prevention-of-significant-deterioration
(PSD) permits before making modifications.
In a separate
case filed against TVA over modifications at its Colbert plant in Alabama, the
U.S. District Court for the Northern District of Alabama also ruled similar
claims were time-barred (National Parks
Conservation Ass'n v. TVA, N.D. Ala., No. 01-403, 62 ERC 1411 (2006);
12 DEN A-5, 1/19/06 ).
The case before
the Sixth Circuit stems from the replacement of boiler tubing by TVA at its Bull
Run plant in 1988. The power authority did not apply for or obtain the PSD
permit required of "major modifications" that would produce significant net
emissions increases.
Administrative Order Issued by EPA
Following an
investigation, the Environmental Protection Agency issued an administrative
order in November 1999 that said the boiler overhaul constituted a modification
of the plant, which triggered PSD. A revised version of that order ultimately
was upheld by EPA's Environmental Appeals Board.
However, EPA's
ability to enforce the order ran into a roadblock in June 2003, when the U.S.
Court of Appeals for the 11th Circuit held that EPA's administrative compliance
orders issued under the Clean Air Act were unconstitutional and lacked the force
of law (TVA v. Whitman, 336 F.3d.
1236, 56 ERC 1737 (11th Cir. 2003); 123 DEN A-1, 6/26/03 ).
The U.S. Supreme
Court declined to review that ruling and EPA was left with the option of
bringing an enforcement action against TVA in federal district court.
"Apparently
still clinging to its belief that it could not sue TVA in federal court, the EPA
has not pursued such an action," the Sixth Circuit said in its March 2 ruling.
The National
Parks Conservation Association and the Sierra Club filed their lawsuit over the
matter in February 2001 and were later joined by Our Children's Earth
Foundation. The groups claimed that TVA violated the federal Clean Air Act and
Tennessee's state implementation plan by failing to obtain a PSD permit before
it modified the Bull Run plant in 1988.
Controls Said to Be Avoided
As a result of
its failure to obtain such a permit, the plaintiffs' claimed, TVA avoided
appropriate controls on emissions of sulfur dioxide and nitrogen oxides. The
plaintiffs sought declaratory relief, an injunction, and civil penalties to be
paid to EPA.
In 2005, the
U.S. District Court for the Eastern District of Tennessee granted TVA summary
judgment in the case, finding the alleged violation was a one-time event that
occurred in 1988 and therefore was barred by the five-year statute of
limitations. The groups appealed.
Upon its
consideration, the Sixth Circuit found that, if violations of the Clean Air
Act's new source review provisions have indeed occurred, they would continue
every day the plant at issue operated. Therefore, the appeals court said, the
claims were not time-barred.
Circuit Judge
Karen Nelson Moore wrote the opinion and was joined by Judge Avern Cohn of the
U.S. District Court for the District of Michigan, sitting by designation.
Circuit Judge Alice M. Batchelder dissented.
The Sixth
Circuit remanded the case to the district court. Whether the 1988 activity that
is the subject of the lawsuit constitutes a major modification that would
trigger PSD is to be considered by the district court upon remand. The trial
court also may consider whether TVA can, as a government agency, claim sovereign
immunity, an issue on which the appellate court did not rule.
TVA Deciding Next Move
George E. Hays,
a San Francisco-based attorney representing the conservation and environmental
groups, said the ruling is "relevant to every pending NSR enforcement case."
Hays, who also is the plaintiffs' attorney in the Alabama lawsuit, said that
case has been appealed to the 11th Circuit and "we will be notifying [that
appeals] court regarding this case."
TVA spokeswoman
Barbara Martocci told BNA that the utility's officials have not yet decided
their next legal move following the Sixth Circuit ruling. Among the
considerations is whether to assert a sovereign immunity defense, she said.
According to
Martocci, regardless of the outcome of the case, TVA plans on installing "state
of the art" sulfur dioxide controls at the Bull Run facility and already is
operating nitrogen oxide reduction equipment at the plant. A flue gas
desulfurization system that will remove 95 percent of the sulfur dioxides
emitted by the plant will be operational by 2009, she said.
In addition,
Martocci said, "TVA routinely maintains, repairs, or replaces equipment at its
power plants to ensure they are available to provide the needed power demanded
by its consumers."
The federal
government argued in a brief to the U.S. Supreme Court March 1 that Section
107(a) of the superfund law does not authorize potentially liable private
parties that voluntarily clean up contaminated property to sue other potentially
liable parties (United States v. Atlantic Research Corp., U.S., No.
06-562, 3/1/07).
The federal
government is appealing a 2006 decision by the U.S. Court of Appeals for the
Eighth Circuit that found Atlantic Research Corp. could bring a claim under
Section 107(a) of the Comprehensive Environmental Response, Compensation, and
Liability Act against the federal government to recover cleanup costs it
incurred at a contaminated Camden, Ark., facility where Atlantic retrofitted
rocket motors for the Department of Defense (Atlantic Research Corp. v. UGI
Utilities Inc., 459 F.3d 827, 62 ERC 1993 (8th Cir. 2006); 157 DEN A-2,
8/15/06
).
The Supreme Court
will hear arguments in this case April 23 (13 DEN A-8, 1/22/07
).
The government
argued in the brief that by its terms, Section 107 does not authorize a
non-innocent private party to bring a cost recovery claim against another
non-innocent party. Section 107(a) provides that potentially responsible parties
are liable for all government-incurred response costs and for "other necessary
response costs incurred by any other person[.]" The government argues that "any
other person" means any person other than those defined in Section 107(a) as
potentially responsible parties.
The government also
argued that Section 107(a) does not provide an implied right to contribution,
and that even if it did, contribution rights only apply to parties that have
been judicially found liable or otherwise settled their liability.
The government
argued that Section 113 of CERCLA, which was added in the Superfund Amendments
and Reauthorization Act of 1986, provides the exclusive vehicle for contribution
claims under CERCLA.
The government
argued that finding a cause of action under Section 107(a) for parties that
voluntarily clean up contaminated property would undermine Congress' goal in
enacting CERCLA to encourage swift settlement with the federal government for
contaminated property liability.
Appeals
Courts Split on Issue
The federal
appeals courts that have ruled on the issue have been split in their decisions.
The U.S. courts of appeals for the Second and Seventh Circuits joined the Eighth
in finding parties that voluntarily clean up contaminated properties may bring
claims under Section 107(a) (Consolidated Edison Co. of New York v. UGI
Utilities, 423 F.3d 90, 61 ERC 1321 (2d Cir. 2005) (181 DEN A-8, 9/20/05
); Metropolitan Water Reclamation District of
Greater Chicago v. North American Galvanizing & Coatings Inc., 473 F.3d 824,
63 ERC 1641 (7th Cir. 2007) (12 DEN A-3, 1/19/07
).
The U.S. Court of
Appeals for the Third Circuit, however, found no implied right to contribution
under Section 107(a) (E.I. du Pont de Nemours & Co. v. United States, 460
F.3d 515, 62 ERC 2025 (3d. Cir. 2006); 170 DEN A-1, 9/1/06
).
Rocket
Propellant Contaminated Soil
Atlantic's work at the government's facility involved
removing rocket propellant using a high-pressure water spray. Once removed, the
propellant was burned, contaminating the soil and groundwater.
Atlantic
voluntarily cleaned up the contamination, incurring costs in the process. In
December 2002, it sought to recover a portion of these costs from the United
States by invoking CERCLA Sections 107(a) and 113.
In 2004, the
Supreme Court held that potentially responsible parties may bring a Section 113
contribution claim for costs incurred, but only if they have been sued or have
otherwise resolved their superfund liability with the government (Cooper
Industries Inc. v. Aviall Services Inc., 543 U.S. 157, 59 ERC 1545 (2004);
74 DEN A-2, 4/18/06
).
However,
the Cooper Industries decision left open the question of whether a
non-innocent private party may pursue a Section 107(a) action against other
parties, including as an alternative remedy to a barred Section 113 claim.
EPA Settles Four Midwestern Cases
On Chemicals, Proposes Penalty in Another
LANSING,
Mich.--The Environmental Protection Agency said Feb. 15 it had settled four
cases involving the late notification of hazardous chemical releases, and
proposed a civil penalty for a Wisconsin company over an alleged ammonia leak.
Alsip,
Ill.-based Hondo Inc., doing business as Coca-Cola Bottling of Chicago, paid a
$10,478 civil penalty for failure to promptly report a 563-pound release of
anhydrous ammonia to the National Response Center, the EPA said. The agency said
the center was notified more than three hours
after the company knew of the chemical release from a faulty refrigeration
system on the building's roof. Anhydrous ammonia releases greater than 100
pounds must be immediately reported.
Alpharma Inc.,
an animal feed facility in Chicago Heights, Ill., paid a $5,000 cash penalty and
will complete a $24,737 environmental project for failing to promptly report a
13,277-pound release of sulfuric acid; releases of more than 1,000 pounds must
be immediately reported. The EPA said the response center was notified more than
six hours after the company knew of the
incident, which resulted from a leaky storage tank. Alpharma will install a
remote monitor and alarm system on its sulfuric acid storage tank and upgrade
the piping connected to the system, the EPA said.
In Dwight, Ill.,
Aldi Inc. paid a $23,150 civil penalty and agreed to complete a $23,150
environmental project for waiting more than
eight hours to notify the National Response Center, the state emergency
response commission, and the local emergency response planning committee of a
600-pound anhydrous ammonia release when a pressure relief valve opened
prematurely. A required written follow-up report was also filed late, 32 days
after the incident, the agency said. Aldi will purchase additional emergency
response equipment for the Dwight Fire Department, EPA said.
In Michigan, DTE
Energy's Detroit Edison paid a $52,333 civil penalty after a Detroit Edison
electrical power generating plant in River Rouge was cited for failure to
immediately notify the National Response Center of a 10,559-pound release of
sodium hydroxide. EPA said the company notified the center, the Michigan
emergency response commission, and the local emergency planning committee
about an hour after it knew of the
release, which occurred when a maintenance crew left a process valve open. In
addition, the company was late with its required follow-up report to the
Michigan emergency response commission and never filed a report to the local
emergency planning committee, EPA said. Sodium hydroxide releases greater than
1,000 pounds must be reported immediately.
The incidents
occurred between 2003 and 2006.
In the new case,
EPA proposed a civil penalty of $80,596 against Conserve FS Inc., doing business
as Lake-Cook Farm Supply in Kansasville, Wis. The facility was cited for waiting
more than 17 hours to notify the
Wisconsin Emergency Response Commission and the local emergency response
planning commission of a 1,055-pound release of anhydrous ammonia in 2004. The
release was caused by a leaking valve on an ammonia tank, EPA said. The company
has 30 days to answer the complaint, and may request a meeting to discuss
settlement.
Democratic Lawmakers Introduce Bills
To Overturn Rule
on Toxics Reporting
Democratic lawmakers introduced companion bills in the House and Senate Feb. 14
intended to overturn a final Environmental Protection Agency rule that reduces
the amount of information on chemical releases required to be reported to the
Toxics Release Inventory (TRI) database.
The legislation (no bill numbers available) was introduced in the Senate by Sens.
Frank Lautenberg (N.J.) and Barbara Boxer (Calif.), chairwoman of the Senate
Environment and Public Works Committee.
Rep. Frank Pallone Jr. (N.J.) introduced the bill in the House with Rep. Hilda
Solis (Calif.). It has 47 additional co-sponsors.
The lawmakers announced their intention Feb. 13 to introduce the Right-to-Know
Protection Act, which codifies stricter requirements that were in place before
EPA issued the rule Dec. 22 (30 DEN A-10, 02/14/07)
"By codifying these requirements, neither the current administration nor future
administrations could again change the guidelines without the approval of
Congress," according to a statement released by Pallone's office.
An
aide to Lautenberg said Boxer has indicated she wants the environment committee
to mark up the bill soon, although the aide did not have a specific date.
The EPA rule raised the threshold--from 500 pounds to 2,000 pounds--at which
companies have to use a more detailed form for reporting chemical releases. It
also restructured the reporting scheme in a manner that agency officials said
would minimize waste and increase recycling (71 Fed. Reg. 76,932; 243 DEN A-11,
12/19/06).
The agency had been considering changing the frequency of TRI reporting from one
year to two, but later decided not to go forward with that change.
The legislation, which amends the Emergency Planning and Community Right-to-Know
Act (EPCRA), would:
- remove
EPA's ability to change the frequency of TRI reporting;
- prohibit
the use of Form A (a short, less-detailed form) for reporting releases of
persistent, bioaccumulative, and toxic (PBT) chemicals; and
- require
a longer, more detailed form to report releases of non-PBT chemicals in amounts
greater than 500 pounds.
The TRI database contains information on more than 650 chemicals from industrial
sources in more than 23,600 facilities for the 2004 calendar year, according to
EPA. The inventory tracks chemicals and industrial sectors specified under EPCRA.
EPA Selects Priorities Focusing on Risk, Noncompliance for Next Three Fiscal
Years
The Environmental Protection Agency plans to expand its enforcement priorities
to include strengthening compliance with hazardous waste financial assurance
regulations for fiscal years 2008 through 2010, the agency said in a notice to
be published Feb. 9 in the Federal Register.
The new priority proposed for
the next three-year cycle is to ensure that people handling hazardous waste have
adequate funds to close facilities, clean up releases, and compensate affected
parities, as required under the Comprehensive Environmental Response,
Compensation, and Liability Act and the Resource Conservation and Recovery Act,
EPA said in the notice.
Selections for final
priorities are generally incorporated into the agency's Office of Enforcement
and Compliance Assurance Workplanning Guidance, which provides national program
direction for all EPA regional offices, the agency said.
EPA has said the national
enforcement and compliance assurance program is responsible for maximizing
compliance with federal environmental laws. The agency said it has developed a
performance-based strategy to achieve specific outcomes for each national
priority area.
Air, Water
Rules Still Priorities
In its notice, EPA said it
will continue to focus on enforcing air and water regulations. This includes
enforcing new source review requirements under the Clean Air Act, which requires
facilities to install modern pollution controls when they make changes that
increase emissions. Failure to comply with these requirements results in
inadequate emissions control that contribute thousands of tons of pollution each
year, the agency noted.
Another continued priority is
to reduce emissions from noncompliant facilities that emit hazardous air
pollutants by ensuring compliance with Maximum Achievable Control Technology
standards under the Clean Air Act, EPA said. The MACT standard is the average
emissions level of the best-performing 12 percent of sources.
However, EPA is dropping from
its enforcement priority list its goal to use compliance and enforcement tools
to reduce air emissions and eliminate unpermitted releases from operating
domestic petroleum refineries. EPA said it has met its goal of addressing 80
percent of refinery capacity.
The agency also said it will
continue to list several water enforcement issues under the Clean Water Act as
priorities. These include stormwater runoff, combined sewer overflow, sanitary
sewer overflow, and concentrated animal feeding operations, which all were cited
in its last three-year cycle.
According to EPA, stormwater
runoff in urban areas can include a variety of pollutants, such as sediment,
bacteria, organic nutrients, hydrocarbons, metals, oil, and grease.
The wastewater volume in a
combined sewer system can exceed the capacity of the system or treatment plant,
leading to an overflow, EPA explained.
EPA cited several pollutants
contained in raw sewage from sanitary sewer overflows, including bacteria,
pathogens, nutrients, untreated industrial waste, toxic pollutants such as oil
and pesticides, and wastewater solids and debris.
Concentrated animal feeding
operations are cited due to the large volume of animal waste generated in
concentrated areas.
The agency continues to list
as a priority increasing compliance rates under RCRA in the mining and mineral
processing sectors to reduce risk to health and the environment, EPA said.
In another priority, EPA said
it plans to work with Native American tribes to help them address threats to
their health and environment caused by all types of pollution.
Public comments are due March
10. Comments may be sent electronically, using Docket ID No.
EPA-HQ-OECA-2007-0066, via
http://www.regulations.gov.
For more
information, contact Nicholas Franco, director of EPA's National Planning and
Analysis Staff, at (202) 564-0113.
New Format for Safety Data Sheets In European Union Goes Into Effect June 1
FT. LAUDERDALE,
Fla.--Chemical manufacturers that export chemicals to the European Union will
need to be sure those documents comply with a new format that goes into effect
June 1, a senior official from Ciba Specialty Chemicals said Jan. 31.
"If we export to
Europe we must use the new format," said Craig Barker, head of regulatory
affairs at the company.
Robert Donkers,
environment counselor for the Delegation of the European Commission to the
United States, told BNA Feb. 1 that the new format is a first step in aligning
EU requirements with those of the Globally Harmonized System of Classification
and Labeling of Chemicals (GHS).
Barker discussed
GHS during the REACH Implementation Intensive Workshop, a two-day meeting to
discuss strategies to comply with the European Union's new registration,
evaluation, and authorization of chemicals (REACH) legislation. The conference
was organized by the American Chemistry Council, which represents major U.S.
chemical manufacturers, and Canada's Chemical Producers, a trade association
representing Canada's manufacturers.
GHS is a
voluntary international approach to classifying chemicals by their human health
and ecological toxicity and then labeling them to communicate those hazards. The
U.N. Committee of Experts on the Transport of Dangerous Goods and on the
Globally Harmonized System formally adopted the GHS in December 2002.
While
legislation to implement GHS has not been introduced by the European Commission,
the Commission accepted comment on implementation in 2006 (175 DEN A-5, 09/11/06
"As a company,
I'm totally behind GHS," Barker said. Switching to GHS will be a lot of work, he
acknowledged, but the benefits GHS will bring in terms of making classifications
and labels consistent is worth the investment.
Two Sections Switched
As of June 1,
safety data sheets used in Europe are to follow the format GHS uses, Barker
said.
Under the new
format, the name of the chemical will be listed first, followed by the hazards
the chemical poses. Details about the composition of the chemical will be listed
third. Currently, European safety data sheets have the name of the chemical
followed by composition and then hazard information.
"Section two and
three will be inverted," Barker said during his presentation.
This is strictly
a format change, he told BNA, adding that the content in the safety data sheets
cannot comply with GHS until the European Union implements it.
It is
unrealistic for companies to produce one format for safety data sheets on May 31
and instantly switch formats on June 1, Barker told BNA. Hence he is urging
companies to begin shifting formats prior to the June 1 deadline, so that they
will be in compliance by then.
While that would
mean the firms technically would be in violation of current requirements, Barker
said he would expect member states, which enforce safety data sheet
requirements, to be flexible given the lack of a transition time for the new
format.
Many Firms Already Using New Format
Kathleen
Roberts, who works on chemical compliance issues at the American Chemistry
Council, told BNA the format the European Union will now require is the same as
that approved by the American National Standards Institute (ANSI) in 2004. All
council members and many other chemical companies use that format, she added.
The new EU
format also is consistent with the Occupational Safety and Health
Administration's recommendation, according to information posted on OSHA's
website.
Hence the change
shift itself will not be hard to accomplish, Roberts said.
Chemical
companies are not clear, however, on how the new requirements will be enforced,
she said.
The requirement
also is "just one more" responsibility for firms already busy trying to
understand their obligation under REACH, she said.
Sixth Circuit Finds No CERCLA Liability Due to 'Demarcation Line' in Sale
Agreement
The buyer of an
Ohio manufacturing facility in the 1970s did not assume superfund liability
related to the previous owner's disposal of hazardous waste because of a
"demarcation line" in the facility's purchase and sale agreement, a federal
appeals court held Jan. 8 (Oxy USA Inc. v.
Borden Inc., 6th Cir., No. 06-3158, 1/08/07).<
While the
January 1974 purchase and sale agreement related to the industrial facility did
not explicitly mention anything about superfund, which was not enacted until
1980, or anything about environmental liability generally, the agreement
contained an "assumption of obligations provision" stating that the seller of
the facility "continue[s] to be responsible for all obligations arising out of
events" related to the facility prior to the agreement's closing date.
The agreement
further said the buyer "assumes all obligations" for "events" occurring after
the closing date.
The U.S. Court
of Appeals for the Sixth Circuit held that a plain reading of this language set
up a "demarcation line" with superfund liability incurred prior to the
agreement's closing date falling on the old owner of the facility.
The appeals
court upheld the dismissal of an indemnity claim filed by Oxy USA Inc., the
alleged successor to the Cities Service Co., against Borden Inc., related to
superfund cleanup costs incurred by Oxy at the Skinner Landfill in West Chester,
Ohio.
A Cleanup, a Claim
In 1974, Cities
sold an ink manufacturing facility in Weedlawn, Ohio, known as the "Levey
Division" to Borden.
A "General
Transfer" provision, known as "Section 7" of the Agreement for Purchase and Sale
(APA), between the parties stated "on the closing date, subject to the terms and
conditions set forth in this agreement, Cities will sell, convey, assign,
transfer and deliver to Borden, all the assets and properties of every kind ...
free and clear of all liabilities and obligations, except only those liabilities
and obligations which are to be assumed by Borden as provided herein."
An "Assumption"
provision, known as "Section 11" of the APA, stated, "Borden hereby assumes all
the obligations of Cities, arising out of events occurring after the closing
date relating to the business or assets of the Levey Division transferred
hereunder, except to the extent that any such obligation arises from a breach by
Cities of a warranty or covenant. Cities will continue to be responsible for all
obligations arising out of events occurring prior to and on the closing date
relating to the business or assets of the Levey Division."
The Birth of CERCLA
The
Comprehensive Environmental Response, Compensation and Liability Act was enacted
in 1980. Three years later, the Environmental Protection Agency added a landfill
site in Ohio called the "Skinner Landfill" to the National Priorities List of
contaminated sites needing to be cleaned up under superfund.
Dow Chemical Co.
sued Oxy USA and more than 80 others in 1997 under Section 107 of CERCLA,
alleging those companies were liable for the landfill's cleanup costs.
Dow's claim
against Oxy USA alleged that Oxy USA was the successor to Cities and that prior
to 1974, when Cities owned and operated the ink manufacturing facility in
Weedlawn, Cities had disposed of hazardous waste at the landfill.
Oxy USA
cross-claimed against Borden alleging that under the January 1974 sale agreement
between Cities and Borden, Borden assumed liability for the pre-1974 hazardous
waste disposals.
The district
court found in favor of Borden on the grounds that Section 11 of the Agreement
for Purchase and Sale (APA), the assumption of obligations provision,
established a "demarcation line" with liability arising before January 1974
staying with Cities and liability arising after that date falling on Borden. Oxy
appealed.
No Liability to Borden
Agreeing with
the lower court, the Sixth Circuit held that Borden did not assume any liability
for hazardous waste disposals occurring prior to the sale agreement's closing
date.
"Section 11 of
the APA states in clear language that 'Borden hereby assumes all of the
obligations of Cities, arising out of events occurring after the closing date
relating to the business or assets of the Levey Division transferred hereunder,'
while 'Cities will continue to be
responsible for all obligations
arising out of events occurring prior to and on the closing date
relating to the business or assets of the Levey Division,' " the appeals court
said.
"Oxy's
obligation under CERCLA to share in the clean up of the Skinner Landfill
directly arose from a pre-closing event: Cities' disposal of waste at the
landfill," the Sixth Circuit said. "As such, Oxy must retain liability under the
plain language of the contract. An alternative reading of the APA requires a
strained effort to arrive at an outcome not apparent from the face of the
contract."
Party Participation in Voluntary State Cleanup Agreement Does Not Resolve CERCLA
Liability
A party's
participation in a state voluntary cleanup program does not resolve its
liability under the federal superfund law, a federal district court held Jan. 9
(Differential Development-1994 v. Harkrider
Distributing Co., S.D. Tex., No. H-05-3375, 1/9/07).
A participant in
such a program is therefore barred from pursuing a contribution action under
Section 113(f)(3)(B) of the Comprehensive Environmental Response, Compensation,
and Liability Act, the U.S. District Court for the Southern District of Texas,
Houston Division, held.
CERCLA Section
113(f)(3)(B) states that a "person who has resolved its liability to the United
States or a state for some or all of a response action or for some or all of the
costs of such an action in an administrative or judicially approved settlement
may seek contribution from" a responsible party that has not settled.
The district
court dismissed two companies' Section 113 contribution claims against the City
of Houston and others related to the contamination of the site of a Houston
shopping center. The property had been contaminated by dry cleaning chemicals.
The court also
dismissed the companies' Section 107 claims on the grounds that the companies
were potentially responsible parties and, consequently, were not allowed to sue
under that provision.
The PERC, the Claim
The owner of a
Houston shopping complex, Differential Development-1994 Ltd., and one of its
tenants, Pro Cleaners, began investigating in 2003 the area including and around
the complex for contamination.
After finding
dry cleaning chemicals, known as perchloroethylene (PERC), in the area's surface
and subsurface contamination, Differential Development and Pro Cleaners entered
into a "Voluntary Cleanup Agreement Program" with the Texas Commission on
Environmental Quality in which they did not admit liability for the
contamination but agreed to conduct cleanup efforts under the voluntary program.
After allegedly
incurring substantial investigatory and cleanup-related costs, Differential
Development and Pro Cleaners filed a federal superfund lawsuit against the City
of Houston, Harkrider Distributing Co. (now known as KSB Inc.), and Safety-Kleen
Systems Inc.
The two
companies alleged that the city was liable for the PERC contamination under
CERCLA because the city's sewer lines had gaps and cracks that released PERC
into the soil. They alleged that Harkrider, a dry cleaning chemical supplier,
was liable because its trucks or other containers spilled PERC. Safety-Kleen, a
waste management company, likewise allegedly spilled PERC from its trucks or
other containers.
Seeking to
recover some of the money they had already spent cleaning up the area, and
seeking a declaratory judgment related to future costs, Differential Development
and Pro Cleaners alleged claims under both Section 107 and Section 113 of CERCLA.
The city,
Harkrider, and Safety-Kleen moved to dismiss. In their dismissal motions, the
defendants cited Cooper Industries v. Aviall
Services Inc., 543 U.S. 157, 59 ERC 1545 (2004), and argued that
Differential Development and Pro Cleaners could not sue for contribution under
Section 113 because the two companies had not themselves been sued under
superfund and had not otherwise resolved their superfund liability.
The defendants
also alleged that the Section 107 claims should be dismissed because
Differential Development and Pro Cleaners were potentially responsible parties
and, consequently, were limited to Section 113 claims.
Among many
countering arguments made by Differential Development and Pro Cleaners, the
plaintiffs alleged that their claims could proceed under Section 113 (f)(3)(B)
because their Voluntary Cleanup Agreements with the Texas Commission on
Environmental Quality had resolved at least part of their CERCLA liability.
Court Says None of the Claims May Be Heard
Dismissing the
lawsuit, the district court held that none of the claims alleged by Differential
Development and Pro Cleaners could be heard.
In addition to
dismissing their Section 107 claims on the grounds that potentially responsible
parties cannot sue under that provision, the district court held that the
cleanup agreement among Differential Development, Pro Cleaners, and state
regulators was not a settlement and did not otherwise resolve any of the two
companies' potential superfund liability.
The court
emphasized in its finding that nowhere in the agreement was any mention of
CERCLA ever made.
Citing in
support Consolidated Edison Co. of New York
Inc. v. UGI Utilities Inc., 423 F.3d 90, 61 ERC 1321(2d Cir. 2005),
which involved New York regulators, the court said, "The VCP Agreement that
Differential Development and Pro Cleaners entered into with the TCEQ is similar
to the voluntary cleanup agreement at issue in
Consolidated Edison."
"The VCP
Agreement does not state that it resolves any claim under CERCLA. The agreement
states that it is not an admission of liability under TSWDA (the Texas Solid
Waste Disposal Act, a.k.a. the state's superfund law); it does not mention
CERCLA."
The court went
on to say, "by applying for the TCEQ voluntary cleanup program, Differential
Development and Pro Cleaners received assurance that the TCEQ would not bring an
enforcement action while the Agreement was in effect. But the Agreement clearly
states that it does not resolve any claim by or against the participating
parties."
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