EPA Regulation of Greenhouse Gases

By Jeffrey W. Cappola |   Aug. 11, 2014

The United States Supreme Court ruled in June that the Environmental Protection Agency (EPA) must reduce its authority to regulate greenhouse gas emissions from stationary sources. The EPA tried to increase two of its permit programs to include emissions of carbon dioxide from stationary sources, which the Court ruled as a violation of the Clean Air Act. The EPA “can continue to treat greenhouse gas emissions as a pollutant for so-called ‘anyway’ sources that already require a permit under the Best Available Control Technology (BACT) program for conventional pollutants like particulate matter, but cannot do the same from defining a ‘major emitting facility’ for Prevention of Significant Deterioration (PSD) or a ‘major source’ for Title V.” Many groups that challenged the EPA’s interpretation of the rule claimed that they were trying to fit greenhouse gas regulations around the very different PSD program; the Court ruled that the EPA has no authority to “tailor” the language of the Clean Air Act to fit their policy goal. Although the EPA had some of its authority struck down, the agency was happy with the decision because it can still “require carbon pollution limits for the nation’s largest sources.”

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Morristown Associates v. Grant Oil

By Jeffrey W. Cappola |   Jul. 22, 2014

In 2006, Morristown Associates filed a suit against multiple heating companies and the previous owners of a dry cleaning business to seek payment for the costs they incurred redeveloping the property. They cited the source of contamination as leaking underground storage tanks. The contamination had been the result of corroded fill pipes that failed after ten years; the pipes were intended to last at least 30 years. Approximately 9,400 to 14,670 gallons of oil leaked over 15 years and contaminated the environment.

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The Clean Water Act - Is Groundwater Included?

By Jeffrey W. Cappola |   Jul. 15, 2014

There has been much controversy in the courts as to whether groundwater can be defined as “navigable waters” under the Clean Water Act. Courts are split on this decision, with equal numbers of rulings on both sides. One case that has been highlighted in this debate is Tri Realty Co. v. Ursinus College. In this case, a residential apartment complex owner claimed that Ursinus College’s underground storage tanks had leaked heating oil into the ground contaminated the soil on his property, and nearby Perkiomen Creek. The owner filed a claim under the Oil Pollution Act (“OPA”) and said that the contaminated groundwater is “hydrologically connected to Perkiomen Creek and its tributary.” The case went before the U.S. District Court for the Eastern District of Pennsylvania, where they ruled that the Clean Water Act and OPA don’t give federal authority over groundwater. This ruling was based on the precedent set forth by Rapanos v. United States, which decided that “navigable waters” should not be broadly interpreted. Therefore, the OPA claim was dismissed on the grounds that the owner failed to claim that the oil discharged into navigable waters because groundwater is not navigable water.

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Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) Apportionment

By Jeffrey W. Cappola |   Jul. 8, 2014

The U.S. Court of Appeals used the recent case of PCS Nitrogen Inc. v. Ashley II of Charleston LLC to decide when it is appropriate to rule in favor of apportionment under CERCLA. In this case, 43 acres of land in Charleston, South Carolina were contaminated with various hazardous substances that forced Ashley II to spend almost $200,000 in remediation. Ashley II sued PCS Nitrogen Inc. for the money it had to spend cleaning the area because PCS Nitrogen was a successor to the former owner of the contaminated land. The district court ruled that PCS was accountable for response costs at the contaminated sites and Ashley II and other parties were responsible for an allocated part of the response costs. This ruling was confirmed by the U.S. Court of Appeals for the Fourth Circuit who said that a reasonable basis for apportioning liability could not be reached by the parties and therefore apportionment would be inappropriate.

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