soday Archives

Mar 15, 2017

Company That Settled CERCLA Liability in Bankruptcy Can Pursue Contribution Claim

In January, the U.S. Court of Appeals for the 10th Circuit reversed a District Court’s ruling that a company that settled its CERCLA liability with the federal government in a bankruptcy proceeding was barred from seeking contribution against another PRP. Instead, the 10th Circuit ruled in Asarco v. Noranda Mining, Inc., No. 16-4045 (10th Cir. 1/3/17), that Asarco is allowed to pursue a claim against another PRP for contribution for amounts Asarco overpaid in its settlement with EPA. Asarco filed for Chapter 11 bankruptcy in 2005. In 2009, a global settlement agreement with EPA under which Asarco paid $1.79 billion… Read more

Jan 3, 2017

FERC Addresses Right of Solar Energy Qualified Facilities to Sell Power to Electric Utilities

Solar Panels - Solar Tariffs - Solar Energy

In a December 15 opinion, the Federal Energy Regulatory Commission (FERC) upheld the right of small power producers such as solar power facilities to sell power to their local utilities under the requirements of the Public Utilities Regulatory Policies Act of 1978 (PURPA). In a Declaratory Opinion, FERC ruled that a utility cannot require that a facilities study or interconnection agreement be obtained before the utility is required to purchase the power from the small power facility under a legally enforceable obligation. FERC regulations require that a utility purchase any energy and capacity made available by a Qualified Facility (QF). … Read more

Dec 6, 2016

EPA Announces First Ten Chemicals To Be Evaluated Under TSCA

In the summer of 2016, Congress passed and President Obama signed into law an amended Toxic Substances Control Act (TSCA) which included, among other things, new authority for U.S. EPA to assess and regulate existing chemicals already in commerce. On November 29, 2016, EPA announced the first ten chemicals that it will evaluate for risks to human health and the environment. As expected, the list includes asbestos and the following chemicals: 1,4-dioxane, 1-bromopropane, carbon tetrachloride, cyclic aliphatic bromide cluster, methylene chloride, N-methylpyrrolidone, pigment violet 29, tetrachloroethylene (a/k/a perchloroethylene), and trichloroethylene. Within six months, EPA is expected to issue a “scoping… Read more

Jun 22, 2016

SGR Client Cox Enterprises Announces Program to Invest $25 Million in Cleantech Companies

SGR is proud to have the award-winning Cox Conserves program of Cox Enterprises as its client. The program has laudable goals for carbon, waste and water neutrality, and SGR assists the company in the implementation of its efforts to meet those goals. On June 13, 2016, Cox Enterprises took another giant step in its sustainability initiative by announcing that the company will invest $25 million in sustainable companies and technologies by 2020. “Cox Enterprises has aggressive sustainability goals. We believe it’s not only smart for the environment, but it’s also good business,” said Alex Taylor, Executive Vice President for Cox… Read more

Jun 13, 2016

The DOJ states that the EPA Assistance to States with Clean Power Plan Implementation Complies with Law

The U.S. EPA’s (“EPA”) ongoing assistance to states implementing the Clean Power Plan under the new EPA rule has been reviewed by the DOJ for compliance with the U.S. Supreme Court’s decision to stay the rule. Under the stay issued by the U.S. Supreme Court, the EPA is enjoined from implementing the Clean Power Plan. The DOJ has determined that states are not enjoined by the Supreme Court’s decision, and, therefore voluntary request from individual states for assistance in implementation. Clean Power Plans do not rule afoul of the U.S. Supreme Court’s stay on implementing the rule. The EPA’s Clean… Read more

Mar 28, 2016

Supreme Court Upholds $5.8 Million Judgment for Employee Time to Change Into and Out of Safety Equipment

OSHA Issues Final Rule With More Stringent Silica Exposure Limit On March 24, 2016, the Occupational Health and Safety Administration (OSHA) issued a final rule, which among other things, significantly reduces the permissible exposure limit (PEL) for workers’ exposure to respirable crystalline silica from 100 micrograms per cubic meter of air (averaged over an 8-hour shift) to 50 micrograms per cubic meter. The new OSHA rule impacts a wide range of industries including construction, manufacturing, oil and gas production, and railroads. In addition to the more stringent PEL, the new rule includes monitoring, training, record-keeping, housekeeping, and other requirements for… Read more

Feb 29, 2016

Third Circuit Upholds Diligent Prosecution Bar to Citizen Suit Under Clean Air Act

In May, 2014, Group Against Smog and Pollution (GASP) sued coke producer Shenango, Inc. under the Clean Air Act’s (CAA) citizen suit provision for allegedly violating opacity limits in its air permit for its Neville Island, Pennsylvania facility. Prior to that lawsuit, U.S. EPA, Pennsylvania Department of Environmental Protection (DEP) and Allegheny County Health Department (ACHD) had sued Shenango in 2012 in the U.S. District Court for the Western District of Pennsylvania and entered into a consent decree addressing opacity violations. The Court retained jurisdiction to enforce the consent decree. In 2014, ACHD sued Shenango in the Allegheny County Court… Read more

Feb 22, 2016

Ninth Circuit Outlines Standard for Agency Reversal of Policy

With an election year comes speculation about who will win the Presidency and whether the new Administration could reverse some of the more controversial programs of the Obama Administration, including those being pursued by the EPA. Should that happen, a decision last summer by the Ninth Circuit Court of Appeals, en banc, in Organized Village of Kake v. U.S. Department of Agriculture, No. 11-35517, July 29, 2015, http://cdn.ca9.uscourts.gov/datastore/opinions/2015/07/29/11-35517.pdf, could provide guidelines for evaluating such reversals. The case involved a Bush Administration effort to reverse the Clinton Administration’s “Roadless Rule”, promulgated in 2001, just days before the change in administration. In… Read more

Feb 15, 2016

Proposed Pharmaceutical Rule Receives Concerns, Some Praise

The comment period on EPA’s proposed Management Standards for Hazardous Waste Pharmaceuticals closed on December 24. Comments on the proposed rule raised several concerns and lauded some of its provisions. The principal item criticized was the rule’s classification of pharmaceuticals in the “reverse distribution” process as waste. Healthcare facilities and retailers send unused or unsold pharmaceuticals to a central location, and receive credit from the manufacturer. Pharmaceuticals received at the location that are determined to be waste are then disposed in a manner compliant with the Resource Conservation and Recovery Act (RCRA). Comments on the proposed rule took the position… Read more

Feb 1, 2016

Eighth Circuit Reverses Summary Judgment Finding of CERCLA Arranger Liability

On December 10, the Eighth Circuit Court of Appeals, in a 2-1 decision, reversed a trial court’s summary judgment finding that Dico, Inc. had arranger liability under CERCLA for selling buildings known to contain PCB-contaminated insulation. United States v. Dico, Inc., et al, No. 14-2762 (8th Cir. 2015). The Court found that under the U.S. Supreme Court opinion in Burlington Northern and Santa Fe Railway Co. v. U.S., 129 S. Ct. 1870 (2009), the determination of intent to arrange for disposal of a hazardous substance is fact-specific, and that because there was some evidence that the buildings had some commercial… Read more