Real Property & Environmental Law Alert : New Jersey, New York, Pennsylvania & Delaware Lawyers & Attorneys for Real Estate Development & Environmental Law

On December 21, 2011, the United State Environmental Protection Agency (EPA) announced that it had issued the first ever national standards for mercury emissions and other air pollutants from power plants. The regulations were mandated by the 1990 Clean Air Act Amendments. EPA estimates that the new standards will make a major contribution to public health by preventing 11,000 premature deaths and 4,700 heart attacks annually, as well as 130,000 cases of childhood asthma symptoms and about 6,300 cases of acute bronchitis among children each year.

EPA Administrator Lisa P. Jackson stated, "The Mercury and Air Toxics Standards will protect millions of families and children from harmful and costly air pollution and provide the American people with health benefits that far outweigh the costs of compliance." According to EPA, the standards rely on widely available pollution controls that are already in use at more than half of the nation’s coal-fired power plants.

Sources will have three years to achieve compliance, with a fourth year available from state permitting authorities for technology installation. In developing the final rules, EPA consulted with State, local, and tribal officials in and also worked with industry groups, unions and other stakeholders. It reviewed over 900,000 comments. Critics of the regulations assert that they will result in job loss because older coal fired plants may be required to close. EPA counters that society as a whole will benefit because prevention of asthma, heart attacks, bronchitis and other illnesses attributable to air toxics will save $37 billion to $90 billion in health care costs each year by 2016.

Susanne Peticolas is a Director in the Gibbons Real Property & Environmental Department.

• Email This
• Print
• Comments/Questions
• Trackbacks
• Share Link

The Clean Water Act regulates the placement of fill into the “waters of the United States.” That term has come to include wetlands -- or at least some wetlands. The Supreme Court’s last attempt, in Rapanos v. United States, to clarify which wetlands fall within the statute’s coverage caused great confusion, as the five Justices who agreed on the judgment (a four-Justice plurality led by Justice Scalia, and Justice Kennedy, who concurred separately) generated two separate tests for jurisdiction. Which test should lower courts apply? In an opinion released on October 31, the Third Circuit said, “both” -- if the wetlands in question satisfy either Justice Scalia’s test or Justice Kennedy’s test, they fall within the statute’s reach.

Justice Scalia’s plurality opinion Rapanos, decided in 2006, took a “wet” view of “waters of the United States,” restricting that term to “relatively permanent” water bodies that formed “geographic features.” Wetlands, under this test, fall within the statute’s scope only if they have “a continuous surface connection” to such bodies of water. By contrast, Justice Kennedy’s “dry” test construed the statute to cover any wetlands that have a “significant nexus” with “waters of the United States, i.e., that the wetlands, alone or in combination with similar lands in the region, significantly affect the chemical, physical, and biological integrity of covered waters.

In United States v. Donovan, the Third Circuit affirmed a district court summary judgment against Delaware landowner David Donovan, who had been fined $250,000 and ordered to remove 0.771 acres of fill that he had placed on his property without obtaining a permit from the Army Corps of Engineers. Donovan argued that the multiple opinions in Rapanos failed to provide a governing legal standard for Clean Water Act jurisdiction, and that therefore pre-Rapanos case law should govern. The Third Circuit disagreed, and, adopting the position taken by the First Circuit and the Eighth Circuit, held that the Corps of Engineers could assert jurisdiction if the wetlands on Donovan’s property met either test set forth in Rapanos. The Court further held that the government’s evidence indisputably showed that Donovan’s wetlands satisfied the “significant nexus” test, and thus did not have to decide whether there was any genuine issue as to whether they satisfied the Rapanos plurality’s test.

• Email This
• Print
• Comments/Questions
• Trackbacks
• Share Link

On June 8, 2010, in Westport Insurance Co. v. Appleton Papers, Inc., the Wisconsin Court of Appeals for the First District held that two insurers, namely Munich Re Ag and Westport Insurance Co., are liable each for $5 million dollars to compensate Appleton Papers, Inc. (Appleton) for cleaning up the sediment contamination in the Fox River. The Fox River is undergoing a cleanup pursuant to oversight by the United States Environmental Protection Agency.

Appleton acquired assets of National Cash Register Inc. (NCR) during the l950’s and later, NCR manufactured carbonless paper using PCBs (polychlorinated biphynols). The Fox River became polluted with PCBs, a suspected carcinogenic substance. Appleton had sued nine insurers but settled with seven. The remaining two filed the appeal decided by the Wisconsin Court of Appeals in a 2 to 1 decision. Among the issues raised on appeal was whether the insurers were responsible for “after-acquired liability,” namely liability that Appleton acquired along with NCR assets after the policy periods in question expired. The insurers also asserted that Appleton had made voluntary payments not covered by the policies and that notice to the insurers was late, excusing coverage.

While the case was decided under Wisconsin state law, it bears significance to USEPA led river cleanups here in New Jersey. At present the USEPA has entered into a consent decree with 73 potentially responsible parties to conduct a remedial investigation and feasibility study of the Lower Passaic River, a seventeen mile stretch of the estuarine portion of the Passaic River. Presumably parties potentially responsible for sediment contamination in the Passaic will be scrutinizing both their old insurance policies for possible coverage and this decision for legal authority.

Passaic River, Newark, NJ. Photo courtesy of EPA.

John H. Klock is a Director in the Gibbons Real Property & Environmental Department.

• Email This
• Print
• Comments/Questions
• Trackbacks
• Share Link