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Case Updates
CERCLA: Court Rejects Innocent Landowner
Defense for Developer who Worsened
Contamination
In U.S. v. Honeywell
International, Inc., the U.S. District Court for
the Eastern District of California held that a developer
who had no reason to know of contamination is
nevertheless liable for disposing of hazardous
substances under CERCLA because the developer performed
excavation activities that worsened the contamination.
The court rejected the developer’s argument that it was
an “Innocent Landowner” under Section 107, noting that
the developer could not show that a third party was the
“sole” cause of the release.
For more information about
this case, contact Gardere's
Environmental Team.
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CLEAN AIR
ACT: Ninth Circuit Court of Appeals Holds California’s
Marine Vessel Rules Preempted by the Federal Clean Air
Act
In Pacific Merchant
Shipping Association v. Goldstene, the Ninth
Circuit Court of Appeals held that California rules
limiting emissions from auxiliary diesel engines of
oceangoing vessels were preempted by the Federal Clean
Air Act. Defendant California Resources Board argued
that because the rules regulate the sulfur content of
the fuels used by ocean-going vessels, the rules were
permissible under Section 209(d) of the Clean Air Act,
which gives states “the right . . . to control,
regulate, or restrict the use, operation, or movement of
registered or licensed motor vehicles.” The court
rejected the argument, noting the plain language of the
rules regulates emissions, not fuels.
Download
opinion (PDF: 70KB.)
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Legislative/Rulemaking
EPA
Strengthens Ozone Standard
The EPA announced that it
was revising the 8-hour standard for ozone from 0.08
parts per million to 0.075 parts per million. According
to EPA, out of 700 counties in the United States that
are monitored, 300 will have to make air quality
improvements in order to meet the new standard.
Ground-level ozone, a key component of smog, is formed
when nitrogen oxides react with volatile organic
compounds in the presence of sunlight.
Link
to EPA press release regarding this change.
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TCEQ
Proposes Regulations for Recycling Computers
The TCEQ is developing
regulations that will require manufacturers and
retailers of computer equipment to take certain actions
to encourage recycling of used computer equipment. Among
other things, the proposed regulations will require
manufacturers to implement a plan that enables consumers
to recycle computer equipment without paying a separate
fee at the time of recycling. Retailers will not be
allowed to sell new computer equipment in Texas from a
manufacturer that is not on TCEQ’s list of compliant
manufacturers.
Download
TCEQ memo about this program (PDF: 128KB).
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Other News
Home Depot
Settles Alleged Violations for $1.3 Million
The U.S. Department of
Justice recently reported that Home Depot has agreed to
pay a $1.3 million penalty and implement a nationwide
compliance program to resolve alleged violations of the
Clean Water Act. The settlement resolves alleged
stormwater violations at 30 Home Depot construction
sites in 28 states and comes on the heels of EPA’s
announcement of its National Enforcement and Compliance
Assurance Priorities for 2008-2010, which target, among
other things, stormwater compliance at homebuilding and
“big box” construction sites.
Link
to DOJ press release about this settlement.
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EPA Seeks
Comment on U.S. Greenhouse Gas Inventory
The U.S. EPA is seeking
public comment on the draft version of its Inventory of
U.S. Greenhouse Emissions and Sinks: 1990-2006. The
report, which the U.S. is required to prepare as a party
to the United Nations Framework Convention on Climate
Change, tracks national greenhouse gases emissions and
presents historical emissions from 1990 to 2006.
According to the report, overall emissions for 2006
decreased by 1.5% from the previous year.
Link
to EPA Climate Change website.
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Alaska
Village Files Climate Change Lawsuit
The Alaska village of
Kivalina sued 5 oil companies, 14 electric utilities,
and the country’s largest coal company, accusing the
companies of creating a public nuisance. Specifically,
the village contends that the defendants contributed to
global warming by emitting millions of tons of
greenhouse gases into the atmosphere. The suit alleges
that warmer temperatures have resulted in less sea ice,
which normally protects the village from erosion caused
by waves. The village also contends that some of the
defendants engaged in a conspiracy to mislead the public
about the science behind global warming.
Link
to New York Times article about this
suit.
Download
Kivalina lawsuit (PDF: 208KB).
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ASTM
Releases New Vapor Intrusion Standard Practice
On March 4, 2008, ASTM
released its new standard practice for Assessment of
Vapor Intrusion into Structures on Property involved in
Real Estate Transactions. The purpose of the standard
practice is to define good commercial and customary
practice for conducting vapor intrusion assessments on
real property involved in real estate transactions. A
vapor intrusion condition may exist on a parcel of real
property if there exists or is likely to exist on or in
close proximity to the parcel of real estate soil or
groundwater contamination. Volatile chemicals (both
organic and inorganic) may vaporize; coupled with the
right geological conditions, a vapor intrusion condition
may exist that could effect a present or planned
structure.
The vapor intrusion standard
sets forth a 4-tier approach for assessing and
evaluating vapor intrusion conditions. The vapor
intrusion standard practice may be used as a voluntary
supplement to ASTM Practice E1527 (Phase I environmental
site assessment) and is currently not a requirement of
“all appropriate inquiries” under CERCLA.
For more information, please
contact Kevin
L. Colbert.
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W.R. Grace
Settles Superfund Claim for $250 Million
W.R. Grace agreed to pay
$250 million to the federal government for costs related
to the investigation and remediation of asbestos
contamination in Libby, Montana. W.R. Grace, a global
supplier of specialty chemicals, owned and operated a
vermiculite mine and vermiculite processing facilities
in Libby from 1963 to 1990. The company and 61
affiliated companies filed for bankruptcy in April 2001.
The settlement resolves a bankruptcy claim filed by the
federal government to recover funds necessary to cleanup
contaminated schools, homes, and businesses in
Libby.
Link
to Forbes article about this
settlement.
Link
to DOJ press releases about W.R. Grace
settlement.
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