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Green Power
Gardere Leads the Way
in ABA-EPA Law Office Climate Challenge
Showing the firm’s commitment to
sustainability, Gardere announces its participation in
the ABA-EPA
Law Office Climate Challenge. As an Energy Star
Partner, Gardere commits to reducing its energy use by
at least 10%. The firm is working with EarthPeople, LLC,
a Dallas-based sustainability firm, to identify and
develop opportunities for energy efficiency and resource
conservation. Efforts to reach this goal are well
underway in Gardere’s Houston, Dallas, and Austin
offices. Gardere’s participation in the Climate
Challenge is spear-headed by the firm’s environmental
section.
Link
to Texas Lawyer article.
Link
to Greenbiz News article.
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EPA
Recognizes Cities, Companies for Commitment to Green
Power
Dallas and Houston are now
among the top 25 cities purchasing renewable energy,
with a combined impact equivalent to removing 84,000
vehicles from the road. The list of top green purchasers
is published by the EPA as part of its Green Power
Initiatives which sets a nationwide challenge for cities
and companies to increase their use of power which
generated from renewable resources. Among the 850
partner organizations, fifty-three Fortune 500 companies
are participating in EPA’s challenge with Intel
Corporation and Pepsi Co. outranking other companies in
their purchase of green power by at least 50%.
For more on the EPA’s Green
Power Partnership, click
here.
Link
to the EPA Region 6 Press Release on Top Green Power
Purchasers.
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Case Updates
Fourth
Circuit Sends CWA Citizen Suit Back to District
Court
In December 2003, a South
Carolina district court entered an order awarding civil
damages to an environmental group in a Clean Water Act
citizens suit addressing discharges from Gaston Copper
Recycling Corp.’s facility under a NPDES permit. An en
banc Fourth Circuit decision held that the environmental
group had standing through one of its members, which
owned property downstream from the discharge area. After
plaintiff’s revealed that its one member establishing
its standing died before the 2003 order, the Fourth
Circuit re-examined the citizen suit standing issue,
which requires that at least a member of the plaintiff
organization be among those parties affected by the
alleged violations. On Feb. 7, 2008, the Fourth Circuit
remanded the case to the district court to determine
whether plaintiffs can establish standing through two
additional members.
Link
to the Fourth Circuit decision in Friends of the
Earth, Inc. v Gaston Copper Recycling Corp. (PDF:
43KB)
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Gardere Files Amicus
Brief in Lead Paint Public Nuisance Appeal
Gardere recently filed an amicus curiae
brief in the Supreme Court of Rhode Island in support of
the Defendants’ appeal from the adverse public nuisance
verdict regarding lead-based paints. The brief was filed
on behalf of The Coalition for Public Nuisance Fairness
and The Property and Casualty Insurance Association of
America. Gardere was assisted in this effort by Thomas
Lyons of Strauss, Factor, Laing and Lyons in Providence,
RI. Gardere’s brief focused entirely on a “seminal
error” by the trial court -- its erroneous conclusion
that it was not required to defer or even consider the
priorities set by the Rhode Island legislature. Once
“liberated” from these constraints, the trial court
inexorably proceeded to expand the tort of public
nuisance beyond any rational limitations. The brief
stresses the primacy of the legislature’s role, the
importance of judicial deference to its goals, and
provides comprehensive argument and authorities to
support its position that the trial court erroneously
failed to consider the entire “tapestry” of Rhode Island
law before making its sweeping decision.
Download
Amicus Curiae Brief filed by Rick
Faulk and John
Gray. (PDF: 39MB)
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New Hampshire Seeks
Rhode Island’s Model for its MTBE Litigation
New Hampshire Attorney General Kelly A.
Ayotte announced that she is moving forward with a legal
action against manufacturers and refiners of MTBE
alleging contamination of New Hampshire’s water supply.
While that move may have not surprised many, on pages 4
and 5 of a new pleading, she asks the court to adopt the
litigation model that was used by Rhode Island’s
Attorney General to sue former manufacturers of lead
paint. She lauded this model because it removed the
state’s burden of identifying whose product is causing
the alleged injury or nuisance. If adopted, this Rhode
Island model presents a significant threat to known and
accepted product liability laws.
Download
New Hampshire's MTBE pleading. (PDF: 7MB)
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City of Houston Seeks
Relief from Texas Petrochemicals, Inc.
The Texas Petrochemicals, Inc. facility
located near the Houston Ship Channel is the target of a
recent lawsuit by the City of Houston stemming from two
emissions incidents in 2006. The City became aware of
the releases while investigating odor complaints from
neighbors. The petition claims that the unauthorized
releases of chemicals including butadiene violated the
plant’s air permits and Texas’ regulation against
nuisance conditions created by air emissions and that
Texas Petrochemicals failed to accurately report the
incidents. The City seeks penalties of $400,000,
attorney fees, costs of court, and costs of its
investigation in addition to a permanent injunction
prohibiting the plant from violating the Texas Clean Air
Act.
For more information about this case,
contact Diana Larson at 713.276.5458.
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District Court
Allows PRP to Seek Joint & Several Liability
On Dec. 21, 2007, the federal district
court for the District of Kansas held that a potentially
responsible party may seek joint and several liability
in a claim filed under CERCLA’s section 107. The court
in Raytheon Aircraft Company v. United States
disagreed with the government’s position that section
107’s joint and several liability remedy should be
reserved for the government, as an enforcer of CERCLA,
or innocent parties seeking to recover their response
costs from responsible parties. The court reasoned that
the incentives a joint and several liability remedy
provides, such as rapid and voluntary responses to
hazardous waste sites, are “very much in play regardless
of whether the party asserting a cost recovery claim is
the United States, an innocent party or a PRP."
The court noted that regardless of
whether the plaintiff is a PRP, it found no unfairness
in shifting the burden of proof to the defendant to
establish that the harm is divisible and the degree to
which a PRP plaintiff is responsible. Furthermore the
court noted a defendant’s ability to seek an equitable
allocation of response costs through a contribution
counterclaim under CERCLA’s section 113.
For more
information about this case, contact Jon Bull at
214.999.4050.
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D.C. Circuit Overturns
EPA Mercury Emissions Rules
On Feb. 8, 2008, the D.C. Circuit
vacated two EPA rules that would have regulated mercury
emissions by coal-fired and oil-fired power plants using
performance standards and a cap and trade program. In
2000, EPA listed coal-fired and oil-fired power plants
as sources of hazardous air pollutants (HAPs) regulated
under Section 112 of the Clean Air Act.
One of the challenged rules was EPA’s
2005 action delisting these sources, which would have
removed them from specific and stringent emissions
controls requirements under Section 112. The second
rule, in 2006, created more flexible regulation of these
sources under Section 111, including performance-based
standards for new plants, a national emissions cap and
state emissions allowances for new and existing plants,
and a cap and trade program. New Jersey and 14 other
states filed petitions challenging EPA’s rules.
The court held that EPA did not make
findings explicitly required by Section 112 of the Act
to de-list these sources and vacated EPA’s delisting.
Because the Act requires EPA to regulate listed sources
using pollution control requirements under Section 112,
the court vacated EPA’s Section 111 cap and trade and
performance standard regulations.
Download
State of New Jersey v. EPA opinion. (PDF
51KB)
Link
to ENewsUSA story.
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Jurors Side with
Railroad Tie Factory
On Feb. 11, 2008, a jury in the 96th
Judicial District Court of Tarrant County, Texas
returned a verdict finding that Burlington Northern
Sante Fe Railway Company (BNSF) was not responsible for
the plaintiff’s stomach cancer. Linda Faust alleged that
her illness was caused by toxic chemicals from her
husband’s workplace at a railroad tie factory in
Somerville, Texas.
She alleged that she was exposed to
coal-tar creosote when she washed her husband’s work
clothes and she sought at least $6 million in damages.
In the month-long trial, defense attorneys argued that
plaintiff had presented no scientifically reliable
evidence, and that Ms. Faust’s cancer had been caused by
her smoking and by Helicobacter pylori bacteria.
Numerous other lawsuits by Somerville residents are
pending against BNSF and against Koppers Inc., the
current owner of the Somerville factory.
Link
to Fort Worth Star Telegram
article.
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Legislative/Rulemaking
TCEQ Takes
Final Action on Asarco Smelter Permit
On Feb. 15, 2008, the TCEQ
approved renewal of an air permit for the ASARCO smelter
facility in El Paso. TCEQ’s action completes an
important step in paving the way for the company to
restart operations at the facility, which it has not
operated since 1999. TCEQ approved a five-year permit,
rather than a 10-year permit. It also required some
additional conditions, including submission of a
maintenance plan and installation of additional
emissions monitoring equipment. Before ASARCO restarts
smelting operations, TCEQ must make a finding that
ASARCO is not in violation of the Texas Clean Air
Act.
Link
to: TCEQ page.
Link
to KVIA news story.
Link
to Environmental News Service story.
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Air
Permitting Changes for Rock Crushers Proposed
Noting that regulation of
rock crushers through the existing permit by rule had
potential issues with enforceability and determination
of compliance, TCEQ announced a draft Standard Permit on
Feb. 15, 2008. The draft Standard Permit would replace
the existing permit by rule authorizing eligible
permanent rock crusher and certain concrete crusher
facilities. The draft permit addresses concerns
regarding nuisance dust, ambient air quality, and
potential adverse health impacts associated with these
operations. It includes requirements for compliance
recordkeeping, updated technical requirements and
preconstruction notice, as well as setback requirements
and opacity and visible emissions limits. TCEQ will hold
a public meeting on March 18, 2008 and it has set a
March 21, 2008 deadline to receive comments on the draft
Standard Permit.
Download
TCEQ Summary document. (PDF: 1MB)
View
TCEQ press release.
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TCEQ
Proposes Amendments to Utility Rules
The TCEQ will hold a public
hearing on Feb. 26, 2008 concerning proposed rule
amendments to 30 TAC Ch. 291 implementing changes to the
Water Code passed in 2007. The amendments cover a wide
range of statutory changes. Among these, the amendments
allow for surcharges by a water or sewer utility to
reflect changes in documented energy costs without a
contested case hearing. They allow a retail public sewer
utility to contract with a retail public water utility
service to provide consolidated billing for the same
service area. And they allow a municipality to extend a
Certificate of Convenience and Necessity (CCN) to an
area outside its extraterritorial jurisdiction under
certain conditions.
Download
TCEQ summary. (PDF: 49KB)
Download
proposed rules. (PDF: 236KB)
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