Posted on September 25, 2009
On April 14, 2009, I alerted you to EPA’s proposed Mandatory GHG Reporting rule on April 10, 2009. And while we are still waiting for EPA’s Endangerment Finding, and new energy legislation may not see the Senate floor in 2009, we do have a final GHG rule. On September 22, 2009, EPA Administrator Jackson signed the final Mandatory Greenhouse Gas Reporting Rule. This rule should be published in the Federal Register soon, so that it becomes effective before January 1, 2010. The rule imposes monitoring requirements beginning January 1, 2010, and reporting by impacted facilities and other entities by March 31, 2011.
With this rule, EPA is requiring reporting of Greenhouse Gas (“GHG”) emissions by specified GHG emission source categories that exceed 25,000 metric tons of carbon dioxide (“MTCO2”), or varying amounts of several other GHG representing equivalent amounts of emissions based upon their “global warming potential,” referred to as “CO2e.” The rule also requires emissions reporting from suppliers of fuels and industrial gases, as well as mobile source (vehicle) manufacturers. EPA finds its authority for this rule in the Clean Air Act, Sections 114 and 208. The GHGs tracked by the rule include carbon dioxide (CO2), methane (CH4), nitrous oxide (N20), hydrofluorocarbons (HFCs), perfluorocarbons (PFCs), sulfur hexafluoride (SF6) and other fluorinated compounds. Those familiar with the annual Inventory of United States GHG Emissions and Sinks will recognize the sources and GHGs tracked by this rule.
Generally, the final rule is not significantly changed from the proposed rule. However, several source categories were reserved. Thus, this final rule does not currently require reporting of the following source categories: electronics manufacturing, ethanol production, fluorinated GHG production, food processing, industrial landfills, magnesium production, oil and natural gas systems, SF6 from electrical equipment, underground coal mines, wastewater treatment, suppliers of coal.
Additionally, there are several important revisions. In response to significant objections to the “once in, always in” approach for reporting requirements, EPA also included provisions allowing exit from the program upon reduction of GHG emissions below certain thresholds. Specifically, if a facility decreases its emissions below 25,000 metric tons of CO2e per year for five years in a row, or decreases its emissions below 15,000 metric tons of CO2e per year for three years in a row, the facility can apply to exit the program. Facilities can also cease reporting if they shut down GHG-emitting processes or operations.
In response to concern about lack of adequate preparation time, EPA added a provision allowing the use of best available monitoring methods for the initial quarter of 2010, rather than the required monitoring methods. Impacted facilities needing a longer period of time to install necessary monitoring equipment can request an extension beyond March 2010, but not beyond 2010. EPA has also modified monitoring options, changed monitoring locations and allowed use of calculations rather than monitoring to lessen the monitoring burden.
All environmental practitioners will need to become familiar with the requirements of this rule due to its broad applicability. EPA has committed to posting guidance for each subpart and conducting training. EPA has even posted an “applicability tool” computer software program to assist in applicability determinations. This guidance cannot be available soon enough. Clients need to determine applicability and prepare for implementation immediately.
Posted on September 14, 2009
There are three avenues of recovery under CERCLA - a contribution action and two types of cost recovery actions. These cost recovery actions are based on either the plaintiff’s “removal” of the hazardous substances or “remediation” efforts at the site. Each of these avenues has an independent statute of limitations provision. Thus, whether the statute of limitations period has been triggered will depend on how an action is characterized, i.e. whether the action constitutes a contribution action, a cost recovery removal action, or a cost recovery remedial action. While there are various state-specific causes of action related to environmental contamination in Connecticut, this article is confined to the statute of limitations for CERCLA cost recovery and contribution claims.
The statute of limitations analysis related to contribution claims is thankfully quite straight forward. Under CERCLA Section 113, these claims must be brought within three years of a civil action under Section 106 or 107, a CERCLA administrative order, or a judicially approved settlement with respect to costs or damages. 42 U.S.C. § 9613(g)(3). While questions may arise as to what may constitute a CERCLA “administrative order” or whether a “judicially approved settlement” must reference Section 106 or 107, we leave those discussions for another article.
Cost Recovery Claim
The analysis of what constitutes a viable cost recovery claim, whether it is removal or remedial, and when the statute of limitations is first triggered is more intricate. First, it is important to note that certain actions performed on a site may not trigger the statute of limitations period. “[T]here are some cases in which work on a site is neither a remedial nor a removal action, but rather constitutes ‘preliminary’ or ‘interim’ measures that do not trigger the statute of limitations . . ..” Yankee Gas Servs. Co. v. UGI Utils., Inc., 2009 U.S. Dist. LEXIS 44282, *117 (D. Conn. May 22, 2009). While caselaw on what constitutes a preliminary remedy, as opposed to a permanent remedy, is limited, at least one court has determined that “evaluation, sampling, surveying and measuring” do not constitute the initiation of physical on-site construction because “these activities [do] not constitute ‘construction.’” Schaefer v. Town of Victor, 457 F.3d 188, 204 (2d Cir. 2006)(quoting United States v. Findett Corp., 220 F.3d 842, 848 (8th Cir. 2000)).
Beyond this, the characterization of a cost recovery action as either removal or remedial is crucial to determining whether an action to recover response costs is time-barred because there are different statute of limitations periods for a removal action and a remedial action. The statute of limitations for recovery of costs related to removal actions is three years after the completion of the removal action, whereas the limitations period for recovery of costs related to remedial actions is six years after the initiation of physical on-site construction of the remediation. Although there is a lack of clarity as to what constitutes a removal verses a remedial action, removal actions have generally been construed as “time-sensitive responses to public health threats . . ..” Remedial actions, in contrast, are often described as “permanent remedies to threats for which an urgent response is not warranted.”
Assuming for this discussion that the efforts undertaken at a site are beyond preliminary, there is inconsistency as to whether the statute of limitations for remedial actions would only run after a final Remedial Action Plan (RAP) has been approved for the site. One court in the Ninth Circuit, for example, concluded that initiation of physical on-site construction of the remedial action “can only occur after the final remedial action plan is adopted, and that . . . the statute of limitations, therefore, could not have begun to run until the final remedial action was approved . . ..” Cal. v. Neville Chem. Co., 358 F.3d 661, 671 (9th Cir. 2004). The Second Circuit, however, has rejected such a bright line rule and determined that the statute of limitations can be triggered without a final RAP, if the action is “consistent with a permanent remedy.” Schaefer v. Town of Victor, 457 F.3d 188, 205 (2d Cir. 2006).
Compounding the important distinction between removal and remedial actions is variability within the courts in determining the initial trigger for the statute of limitations period. Some courts apply a statute of limitations to an entire site after remediation commences on one portion of the site, while others look to multiple statute of limitations at a single property. See Colorado v. Sunoco, 337 F.3d 1233 (10th Cir. 2003) contra U.S. v. Manzo, 2006 U.S. Dist. LEXIS 70860 (D.N.J. Sept. 29, 2006). While the Second Circuit has not spoken on this issue, a recent District of Connecticut case has adopted the opinion that “there can be only one removal and one remedial action per facility, regardless of the number of phases in which the clean-up occurs.” Yankee Gas Servs. Co. v. UGI Utils., Inc., 2009 U.S. Dist. LEXIS 44282 (D. Conn. May 22, 2009)(emphasis added). Should a court adopt a one site, one action approach, the statute of limitations would be triggered by the first removal or remedial action at the site. Id.; see also Colorado v. Sunoco Thus, it is important to evaluate what actions have occurred at your facility and whether those actions would be considered “removal” or “remedial” to ensure the statute of limitations for a cost recovery action does not run., 337 F.3d 1233 (10th Cir. 2003).
At Robinson & Cole, we have environmental attorneys who have broad experience representing clients in CERCLA actions and the prosecution or defense of other environmental claims. We stand ready to apply this experience and insight to your specific needs. If you would like to discuss statute of limitations concerns, or broader environmental issues, please contact any of the attorneys in our Environmental and Utilities Practice Group.
Earl Phillips W. Richard Smith Lauren Vinokur
(860) 275-8220 (860) 275- 8218 (860) 275-8341
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 United States v. W.R. Grace & Co., 429 F.3d 1224, 1228 (9th Cir. 2005); see also OBG Tech. Servs. v. Northrop Grumman Space & Mission Sys. Corp., 503 F. Supp. 2d 490, 524 (D. Conn. 2007)(“[w]hether . . .actions are properly characterized as remedial or removal actions is a question of law for the Court to decide”); Geraghty & Miller, Inc. v. Conoco Inc., 234 F.3d 917, 926 (5th Cir. 2000)(“the CERCLA definitions [of removal and remedial action] are expansive enough that certain activities may well be covered by both…[and] the cases on this issue tend to be highly fact-specific . . ..”)
 United States v. W.R. Grace & Co., 429 F.3d 1224, 1228 (9th Cir. 2005); see also W.R. Grace & Co. v. Zotos Int'l, Inc., 559 F.3d 85, 92 (2d Cir. 2009). Under 42 U.S.C. § 9601(24) a remedial action “includes, but is not limited to, such actions at the location of the release as storage, confinement, perimeter protection using dikes, trenches, or ditches, clay cover, neutralization, cleanup of released hazardous substances and associated contaminated materials, recycling or reuse, diversion, destruction, segregation of reactive wastes, dredging or excavations, repair or replacement of leaking containers, collection of leachate and runoff, on-site treatment or incineration, provision of alternative water supplies, and any monitoring reasonably required to assure that such actions protect the public health and welfare and the environment.”
Posted on September 14, 2009
Audio Now Available:
A Special ACOEL Event
Obama Administration Environmental Initiatives and Policies
DAVID J. HAYES
Deputy Secretary, U.S. Department of the Interior
Interviewed by David B. Farer, Farer Fersko
Audio of Mr. Farer's interview of Mr. Hayes at the Department of Interior on July 14, 2009, with discussion topics focusing on Interior's priorities concerning climate change, renewable energy and water.
Running time: Approx. 45 min.
Posted on September 8, 2009
Is an indemnity for a third party’s liabilities just an indemnity and not a right of direct action? Yes, says the District Court for the Eastern District of Pennsylvania because the indemnitor avoided words like “assume,” “become liable for,” or “assume all of the liabilities and obligations.”
Here, the United States argued the indemnitor had crossed the line of indemnity into the land of assumption. The federal government pointed to a settlement agreement where the indemnitor agreed to provide remediation required by “law, regulation, order, judgment, or settlement agreement.” Finding the question one of contractual intent, the court found the language to defend and hold harmless does not sound in assumption and is only triggered when an indemnitee suffers a claim or pays damages on a claim. Finding the agreement lacking in the standard words of assumption, the indemnitor prevailed by summary judgment. United States v. Sunoco, Inc. No. 05-633 (E.D. Pa. 2009).
Posted on September 3, 2009
On March 9, 2009, we posted an article regarding issues raised in the United States District Court for the Northern District of Oklahoma, State of Oklahoma v. Tyson Foods, Inc., et al., Case No. 05-CV-329-GFK regarding the Cherokee Nation ownership interests in the Illinois River and its watershed. In this case, the Attorney General for the State of Oklahoma sued several poultry companies for polluting the Illinois River and its watershed in eastern Oklahoma as the result of the disposal of poultry litter in the watershed. The suit alleges claims under CERCLA, RCRA, trespass and nuisance, among other things. The State of Oklahoma sought money damages and injunctive relief against the poultry companies.
The Poultry Defendants filed a Motion to Dismiss for Failure to Join the Cherokee Nation as a Required Party under Rule 19, or in the Alternative, Motion for Judgment on the Pleadings alleging the State lacks standing to prosecute the case. The Poultry Defendants alleged the Cherokee Nation possessed significant, legally protected interests in the Illinois River and it’s Watershed that would be impaired or impeded by its absence from the litigation, and further that the Court should grant judgment as a matter of law to the defendants because the State did not have standing to bring the suit.
In an apparent response to the Motion, the State of Oklahoma filed a “Notice of Filing of Document” to which was attached an agreement between the Cherokee Nation and the State of Oklahoma (Agreement). The Agreement, dated May 19, 2009, acknowledged, among other things, that the Cherokee Nation “has substantial interests in . . . water and other natural resources located within the Illinois River Watershed though the extent of those interests has not been fully adjudicated.”
The Agreement stated that the Cherokee Nation “to the extent of its interests in lands, water and other natural resources in the Illinois River . . . delegates and assigns to the State of Oklahoma any and all claims it has or may have against Defendants named in the [Tyson litigation] for their alleged pollution of the lands, water and other natural resources of the Illinois River Watershed resulting from poultry waste.” The Agreement purported to have a retroactive effective date of June 13, 2005, and was signed by the Attorneys General of the Cherokee Nation and the State of Oklahoma.
The Poultry Defendants immediately challenged the Agreement by filing a “Counter-Notice” the following day, raising several issues as to the procedural and substantive validity of the Notice and Agreement under Oklahoma Law. The Court did not allow further briefing on the issues.
Instead, the Court ruled on the Defendants’ Motions in a recent Opinion and Order. ___F.R.D.___ 2009 WL 2176337 (N.D. Okla. July 22, 2009) The Court held that Oklahoma law explicitly sets forth the requirements the State must follow when entering into agreements such as the purported Agreement with the Cherokee Nation, which procedures were not followed in this instance. After examining other issues negating the validity of the Agreement, the Court concluded that that the Agreement was invalid and does not resolve or moot the Rule 19 Motion to Dismiss raised by the Poultry Defendants. Id. at **3-4.
The Court undertook a Rule 19 analysis to determine if the Cherokee Nation is a required party to the action. Under Rule 19(a)(1), the Court analyzed (1) whether the Cherokee Nation claims an interest relating to the subject of the action, and (2) is so situated that disposing of the action in the Cherokee Nation’s absence may impair or impede its ability to protect the interest or leave an existing party subject to a substantial risk of incurring double, multiple or otherwise inconsistent obligations.
The Court stated that Rule 19 does not require an absent party to possess an interest; it only requires that it claim an interest in the subject matter of the action. Id. at *4. Thus, the Court did not actually rule on the Cherokee Nation’s rights in the Illinois River watershed. It did, however, determine that the Cherokee Nation claims rights to the Illinois River and its watershed. The Court also noted that the Agreement operates as an admission by Oklahoma of the Cherokee Nation’s interest in the action. Id. at *5.
In addition, the Court examined portions of the Cherokee Nation Code, and noted that it evidences the Cherokee Nation’s interest in protecting the Illinois River and in vindicating its rights for pollution of the Illinois River watershed. It further claims an interest in recovering for itself civil remedies, including damages, for the same injuries to the watershed which are claimed in this action. The Court noted other provisions of the Cherokee Nation Code which evidence the Cherokee Nation’s substantial interest in the subject matter of the instant action.
The Court noted: “The claimed interests of the Cherokee Nation in the water rights portion of the subject matter of this action are substantial and are neither fabricated nor frivolous.” (citation omitted) Id. at *6. Thus, the Court concluded that the Cherokee Nation claims an interest relating to the subject matter of the instant case for Rule 19 purposes. Id. at *7.
Under the second prong of Rule 19 analysis, the Court reviewed, among other things, whether the Cherokee Nation was so situated that disposing of the action in the Cherokee Nation’s absence might impair or impede its ability to protect its interest or leave an existing party subject to a substantial risk of incurring double, multiple or otherwise inconsistent obligations. After conducting its analysis of the foregoing factors, the Court concluded that proceeding with the case in the absence of the Cherokee Nation would subject the defendants to a substantial risk of incurring double, multiple or otherwise inconsistent obligations with respect to the claims for monetary damages, and would potentially cause prejudice to the Cherokee Nation’s sovereign interests, among other things. Id. at *9 (The parties had agreed that the joinder of the Cherokee Nation in the case was not feasible because of sovereign immunity. Id. at *9.
The Court also noted that the State had an adequate remedy if the damage claims were dismissed in that it could dismiss and refile the action after the State and the Cherokee Nation entered into a legally binding agreement under Oklahoma law authorizing the State to assert the Cherokee Nation’s CERCLA and other damage claims. Id. at *11.
The Court concluded that the State lacked standing to assert the claims of the Cherokee Nation, Id. at *12, and that the Cherokee Nation is a necessary party under Rule 19 with respect to the State’s claims for damages. Id. at *13. (The Poultry Defendants did not seek dismissal of the claims for injunctive relief.) The Court held that the Cherokee Nation is not a required party to the claims for violation of state environmental and agricultural regulations. Id.
On September 2, 2009, the Cherokee Nation filed its Motion to Intervene in the case, only two weeks prior to trial, and one day prior to the Pretrial Conference.
Stay tuned, we’ll keep you updated.