On May 19, 2015 The Georgia Department of Transportation (“GDOT”) announced that it will not allow Kinder Morgan to exercise eminent domain to seize private property in order to build the Palmetto Pipeline. Kinder Morgan plans to build a pipeline that would stretch between Belton, South Carolina and Jacksonville, Florida, transporting gasoline, diesel, and ethanol at a rate of up to 167,000 barrels per day. The GDOT’s decision is a major roadblock for the proposed pipeline. However, Kinder Morgan plans to “pursue all available options to move forward with the project.” More details on this story are available in the… Read more
Tag: Andrew Bauer
Federal Case Law Impacts Superfund Cost Recovery
The dividing line between Superfund cost recovery and contribution actions under sections 107(a) and 113(f) of CERCLA, respectively, have long been complicated and unclear. Potentially responsible parties (PRPs) typically prefer to proceed under § 107 due to its more favorable statute of limitations and joint and several liability standard, but often plead both sections alternatively when seeking reimbursement and response costs. Several recent court decisions provide additional clarity as to which section is appropriate given the procedural status of the claim. In United States v. Atl. Research Corp., 551 U.S. 128 (2007), the Supreme Court held that the availability of… Read more
EPA Defends Standards for Air Toxics from Solid Waste Incinerators
The EPA is currently defending its process for establishing standards for emissions of hazardous air pollutants from solid waste incinerators before the D.C. Court of Appeals.[1] Historically, EPA takes a pollutant-by-pollutant approach when determining maximum achievable control technology (MACT) standards for commercial and industrial solid waste incineration units. Industry groups have attacked the EPA’s approach which resulted in standards that cannot actually be achieved by existing industrial incinerators. These groups argue that the Clean Air Act requires EPA to set MACT standards based on average overall industry emissions, rather than selecting the best performing units for each individual pollutant. Conversely,… Read more
EPA No Longer Recognizes 2005 Standard for All Appropriate Inquiries
The Environmental Protection Agency has updated its requirements for environmental assessments at brownfields and other sites. In a final rule published on October 6, 2014, the EPA removed reference to the 2005 ASTM International industry standard (E1527-05) from the “all appropriate inquiries standard” under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”). Starting on October 16, 2015, parties must use the 2013 version of the standard (E1527-13) or the EPA’s AAI rule to conduct Phase I environmental assessments and qualify for one of the liability defenses under CERCLA. The final rule will affect both private and public parties who… Read more
Diesel Exhaust Emissions not Subject to RCRA Regulation
On August 20, the U.S. Court of Appeals for the Ninth Circuit held that the diesel exhaust emissions of two railyards were not subject to regulation under the Resource Recovery and Conservation Act (RCRA). The environmental advocates that brought the suit argued that the diesel emissions were solid waste that was disposed of when the emissions were “transported by wind and air currents” to the land and water surrounding the railyards. The Ninth Circuit disagreed, holding that the regulation of diesel fuel emissions fell under the Clean Air Act rather than the RCRA. The Court rejected the argument that releasing… Read more
EPA Emissions Cap Raises Questions About the Expansion of RGGI Participant States
The EPA’s proposal to regulate power plants through carbon emission caps has caused speculation that more states will join the Regional Greenhouse Gas Initiative (RGGI) as a means of complying with the new regulations. The RGGI uses a cap-and-trade program to regulate carbon emissions in its member states. Several factors make the RGGI an attractive solution to some states. Joining the RGGI would allow states to plug into an existing compliance system rather than creating one from scratch. It would also give states an additional two years to comply with the proposed EPA rule, and the program has the potential… Read more