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Environmental & Toxic Tort Law Bulletin - June 2014



Supreme Court Holds that CERCLA Does Not Preempt North Carolina Statute of Repose

On June 9, the U.S. Supreme Court held that the North Carolina statute of repose was not preempted by the Section 9658 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), which contains a provision that preempts statutes of limitations applicable to state-law tort actions in certain circumstances. See CTS Corp. v. Waldburger, No. 13-339, 573 U.S. ___ (2014). The North Carolina statute, which provides that "no cause of action shall accrue more than 10 years from the last act or omission of the defendant giving rise to the cause of action,” was the basis of the trial court’s dismissal of the claims against defendant CTS Corporation, but the dismissal was reversed by the Fourth Circuit Court of Appeals. The Court of Appeals found that CERCLA § 9658 was "ambiguous,” but determined that an interpretation in favor of preemption was preferable because of CERCLA’s remedial purpose. 723 F. 3d 434 (2013).

In reversing the Court of Appeals, the Supreme Court acknowledged that Section 9658 clearly preempts state statutes of limitation and noted that the outcome of this case "turns on whether § 9658 makes a distinction between state-enacted statutes of limitation and statutes of repose.” The Court discussed the key differences in the two types of statutes – the beginning point to measuring the time periods and the different purposes and objectives. According to the Court, statutes of limitation are based on the date the claim accrues; statutes of repose are measured from the date of the last culpable act or omission of the defendant. Similarly, the Court stated that statutes of limitation are directed towards ensuring that plaintiffs diligently pursue their claims; whereas statutes of repose provide a point at which defendants may be free from liability. This distinction in objectives is underscored by the fact that statutes of limitation, but not statutes of repose, are subject to equitable tolling.


Additional Items of Interest

Civil Enforcement

Titanium Parts Manufacturer to Pay Largest Ever TSCA Fine for Single Facility

In May, Titanium Metals Corporation agreed to pay a $13.75 million civil penalty to settle Toxic Substances Control Act (TSCA) violations at its Henderson, Nevada facility. This represents the largest civil penalty ever imposed for TSCA violations at a single facility. The settlement resulted from the company’s unauthorized manufacture and disposal of polychlorinated biphenyls (PCBs) through the processing of titanium from rutile ore. In addition to the fine, the company must investigate and remediate the site at a total expected cost of at least $7 million. Additional information regarding the settlement is available at: http://www2.epa.gov/enforcement/timet-settlement.


EPA Announces Consent Decree for Coal Mining Activities in Kentucky

On May 23, EPA announced a settlement with Nally and Hamilton Enterprises, Inc. as a result of filling of streams without the requisite U.S. Army Corps of Engineers permit at two Kentucky coal mines. The consent decree requires the company to pay a $660,000 civil penalty and restore over 7,600 linear feet of streams.


Criminal Enforcement

Alabama Developer Sentenced to 15 Months for Filling Wetlands Without a Permit

On April 17, William R. "Rusty” Miller, a real estate developer from Fairhope, Alabama was sentenced in Mississippi for violating the Clean Water Act by draining and filling wetlands in Hancock County, Mississippi without a permit. His sentence followed a guilty plea entered in December 2013. He was sentenced to 15 months – 9 months in prison and 6 months in home confinement – and ordered to pay a $15,000 penalty and over $19,000 in restitution.


Pennsylvania Company to Pay $1.2 Million for Stockpiling Explosive Hazardous Waste

On May 21, Pennsylvania-based Action Manufacturing Company pled guilty in federal district court for the Eastern District of Pennsylvania to stockpiling explosive hazardous waste at its facility that should have been sent to an approved treatment and disposal facility under the Resource Conservation and Recovery Act (RCRA). Action agreed to pay a $1.2 million fine and serve a five-year probation term. The president of the company also agreed to resign.


Failure to Properly Handle Asbestos Results in Prison Time

On May 22, a federal judge in South Carolina sentenced David Braswell, a contractor involved in a beachfront condo renovation in Myrtle Beach, to six months in prison plus six months house arrest for failure to properly remove asbestos during the project. Braswell must also pay a $10,000 fine and serve three years supervised release.


Agency News

EPA FY 2014 to 2018 Strategic Plan Released

On April 10, EPA released its FY 2014 to 2018 Strategic Plan which includes five strategic goals: (1) addressing climate change and improving air quality; (2) protecting America’s waters; (3) cleaning up communities and advancing sustainable development; (4) ensuring the safety of chemicals and preventing pollution; and (5) protecting human health and the environment by enforcing laws and assuring compliance. Additional information is available at: http://www2.epa.gov/planandbudget/strategicplan.


ADEM Maintains Water Permitting Authority Despite Challenge

On April 14, ADEM announced that EPA declined to withdraw ADEM’s Clean Water Act (CWA) NPDES permitting authority as urged in a January 2010 petition filed by a coalition of environmental groups. According to the news release, EPA found no allegations worthy of withdrawing Alabama’s NPDES authority. The petition alleged that the Alabama program did not meet the minimum requirements of the CWA. A copy of the news release is available at: http://www.adem.state.al.us/newsEvents/pressreleases/2014/EPADeclines.pdf.


Proposed Clarifications to "Waters of the U.S.” Definition Published for Comment

On April 21, EPA and the U.S. Army Corps of Engineers published for public comment proposed changes to Clean Water Act (CWA) regulations defining the scope of "waters of the United States” subject to CWA protection. The rule, which was outlined in the December 2013 edition of our Environmental and Toxic Torts Law Bulletin, clarifies the scope of CWA jurisdiction in accordance with recent U.S. Supreme Court decisions. Comments on the proposed rule will be accepted through July 21, 2014.


Comment Period for Worker Protection Standard Regulations Extended

On May 14, EPA announced that it is extending to August 18, 2014 the comment period for proposed revisions to the agricultural Worker Protection Standard. The proposed changes include more extensive training requirements regarding pesticide use and protection from pesticide overspray and fumes. For more information, go to http://www.epa.gov/oppfead1/safety/workers/proposed/index.html.


EPA Requires Existing Facilities to Safeguard Aquatic Life from Cooling Intakes

On May 19, EPA finalized NPDES permit regulations that require existing facilities that withdraw 2 million gallons per day or more of cooling water to take steps to reduce fish impingement by choosing one of seven options for meeting best technology available requirements. Facilities that withdraw 125 million gallons per day must also conduct studies to identify site-specific controls to reduce entrainment. New units at these facilities must also be designed to reduce impingement and entrainment by reducing intake flow to a level similar to a closed cycle system. For more information, go to http://water.epa.gov/lawsregs/lawsguidance/cwa/316b/.


Court Decisions

Property Owners May Not Maintain Private Nuisance Claim for Alligator Infestation

On May 15, the Mississippi Supreme Court reinstated and affirmed the trial court’s ruling granting summary judgment in favor of defendant Exxon Mobile Corp. on claims by nearby property owners that an infestation of more than 80 alligators on Exxon’s waste disposal site was a private nuisance. The court held that Exxon could not be held liable for the acts of wild animals beyond its control and noted that alligators are a protected species in Mississippi. See Christmas v. Exxon Mobil Corp., No. 2011-CT-01311-SCT, 2014 WL 1945958 (Miss. May 15, 2014).


West Virginia Supreme Court Upholds Coal Mining Permits

On May 30, the West Virginia Supreme Court upheld the West Virginia Department of Environmental Protection’s issuance of permits that did not include effluent limitations for Total Dissolved Solids, conductivity, and sulfate because the West Virginia Legislature has not adopted water quality standards for these parameters. The court rejected Sierra Club’s argument that effluent limits for these parameters were required in the permit to protect narrative water quality standards contained in the state environmental regulations. See Sierra Club v. Patriot Mining Co., Inc., No. 13-0526 (W.V. Sup. Ct. May 30, 2014).


Supreme Court Asked to Determine Application of Sarbanes-Oxley to Fish

Following the 11th Circuit’s affirmance of his conviction for violating 18 U.S.C. § 1519, the "anti-shredding provision” of the Sarbanes-Oxley Act of 2002, defendant Yates, a commercial fisherman, filed a petition for certiorari to the U.S. Supreme Court. The Court accepted the petition to determine whether Yates was deprived of fair notice that his acts of throwing undersized grouper overboard a commercial fishing vessel would fall within Section 1519, which makes it a crime for anyone who "knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry into any record, document, or tangible object.” Briefs on the merits are due to be filed on June 30 by petitioner and August 19 by respondent. See Yates v. United States, Docket No. 13-7451.


Supreme Court Upholds Regulation of GHG Emissions from Large Stationary Sources

On June 23, the U.S. Supreme Court in Utility Air Regulatory Group v. EPA, No. 12-1146, 573 U.S. ___ (2014), struck down EPA’s "Tailoring Rule” but nevertheless upheld EPA’s regulation of greenhouse gas (GHG) emissions from major stationary pollution sources by holding that stationary sources required to obtain Clean Air Act PSD permits based on emissions of other pollutants could be subject to GHG emissions limitations. However, the Court held that other sources, not already subject to PSD review, could not be required to obtain Title V permit by reason of its GHG emissions.