The D.C. Circuit Remanded EPA’s Decision Not To Regulate Sulfur Dioxide Bursts. In 1996, EPA issued its final decision not to issue regulations limiting short-term, high-level oxides of sulfur bursts (measured as sulfur dioxide or SO₂). 61 Fed. Reg. 25566 (1996). Bursts are SO₂ emissions of 0.50 parts per million or more lasting at least five minutes. The American Lung Association challenged the final decision claiming that it was not sufficiently protective of the health of sensitive individuals, particularly asthmatics. The District of Columbia Circuit determined that EPA had not adequately explained its decision to refrain from regulating SO₂ bursts. The Court explained that it could not rule on the petition unless EPA provided additional reasons for its decision. Accordingly, the Court ordered EPA to provide further justification for the final decision. American Lung Ass’n v. Environmental Protection Agency, 134 F.3d 388 (D.C. Cir. 1998).

The D.C. Circuit Upheld EPA’s 1996 Regulations Establishing New And Revised Stringent NOx Emission Limits For Certain Coal-fired Electric Utility Boilers Under The Acid Rain Program Of The Clean Air Act (CAA). The regulations implemented CAA Section 407(b)(2), which requires that EPA establish NOx limits for Group 2 utility boilers (which include wet bottom and wall-fired units). EPA’s rule also tightened existing NOx emission limits for Group 1 utility boilers (tangentially fired and dry bottom wall-fired) based on language in Section 407(b)(2) that revisions may be warranted if EPA determines that more effective low-NOx burner technology is available. In challenging EPA’s rule, petitioning electric utilities raised a number of arguments, including that EPA misinterpreted the CAA, exceeded its statutory authority, and acted arbitrarily in establishing new and revised NOx limits. The D.C. Circuit rejected most of these claims, holding that EPA had not exceeded its statutory authority and had acted reasonably in setting new limits and in tightening existing NOx standards. The D.C. Circuit also upheld EPA’s January 1, 2000 compliance date. The Court vacated and remanded a small portion of the rule relating to the reclassification of certain cell burner boilers that would have subjected them to tighter NOx limits. Appalachian Power Co. v. EPA, 135 F.3d 791 (D.C. Cir. 1998).

EPA Revised Its Hazardous Air Pollutants (HAP) Source Category List. Sections 112(c) and (e) of the Clean Air Act require EPA to list the HAP source categories and publish a schedule for issuing standards governing HAP sources. On February 12, 1998, EPA published the revised list and schedule. The revision includes a new category of major HAP sources, Natural Gas Transmission and Storage. In addition, the list combines two former source categories -- Hydrogen Cyanide Production and Sodium Cyanide Production -- into a new single category called Cyanide Chemicals Manufacturing. Further, EPA deleted the Cyanuric Chloride Production and Nylon 6 Production source categories. Finally, EPA revised the schedule for promulgating standards for Reinforced Plastic Composites Production, Phosphate Fertilizers Production, Chlorine Production, Phosphoric Acid Production, Cyanide Chemicals Manufacturing, Marine Vessel Loading Operations, and Secondary Lead Smelting. 63 Fed. Reg. 7155 (Feb. 12, 1998).

EPA Issued A Final Rule Adopting Without Change Its Recently Promulgated Reference Test Method For Measuring Particulate Matter Of Less Than Or Equal To 2.5 Microns In Diameter (PM_2.5) In Ambient Air. EPA’s July 18, 1997 rule revising and tightening the National Ambient Air Quality Standards (NAAQS) for particulate matter included a new reference method for measuring PM_2.5. At that time EPA announced the availability of certain laboratory and field test data associated with the development of this reference method, and provided a supplemental comment period for the purpose of taking comments on these test results. In another step toward implementing the revised PM NAAQS, EPA has now reviewed these comments and determined that it is unnecessary to take further rulemaking action or postpone implementation of its new reference method for PM_2.5. 63 Fed. Reg. 6032 (Feb. 5, 1998).

EPA Issued Final Revisions To Its Reformulated Gasoline (RFG) Regulations. Effective January 1, 1998, EPA issued final revisions to its RFG regulations. The RFG amendments make several changes to the rules affecting refiners, importers, and gasoline truckers. These include the elimination of the per-gallon minimum standards for oxides of nitrogen (NOx). Compliance with the goal of per gallon minimums, evening out geographical differences in NOx content, will be accomplished by increasing NOx surveys, especially in the summer, when ground level ozone is at its peak. The amendments: broaden the defenses gasoline truck carriers have for delivering conventional gasoline to RFG areas; modify standards for closely integrated facilities (i.e., geographically proximate facilities with significantly interconnected operations); and revise standards applicable to refiners and importers of conventional gasoline. 62 Fed. Reg. 68,196 (Dec. 31, 1997).

EPA Issued Final Maximum Achievable Control Technology (MACT) Standards To Reduce Emissions Of Hazardous Air Pollutants (HAPs) From Noncombustion Sources In Pulp, Paper And Paperboard Manufacture. Part of a combined clean water and air rulemaking known as the pulp and paper mill Cluster Rules, the NESHAP (National Emissions Standard for HAPs) requires new and existing pulp and paper mills that are major HAP sources to control emissions from pulping and bleaching processes. The rule imposes different emission standards based on the type of pulping process (kraft, sulfite, semichemical, soda, mechanical wood pulping, secondary fiber pulping, or non-wood pulping) and bleaching process (papergrade or dissolving grade). Emission control requirements for new and existing sources are generally the same within each subcategory, but more emission points are regulated for new sources. Affected equipment systems include pulp washing, oxygen delignification, and digester operations, and targeted compounds include chlorinated HAPs and methanol. Required controls include thermal oxidizers or the use of boilers, lime kilns or recovery furnaces to reduce HAP emissions. Facilities must monitor control device and other process and operating parameters. The rule provides an alternative compliance approach for certain equipment covered by the kraft pulping standards, focusing on reducing HAP concentrations in process water. The NESHAP generally requires existing sources to comply by April 16, 2001, while new sources must comply with applicable requirements upon startup. Additional time is provided to facilities participating in a clean water voluntary advanced technology incentives program. The rule becomes effective June 15, 1998. 63 Fed. Reg. 18,504 (April 15, 1998).

EPA Amended The NESHAP And Issued A Control Techniques Guideline Document for Aerospace Manufacturing and Rework Facilities. In September 1995, EPA promulgated National Emission Standards for HAPs (NESHAP) for Aerospace Manufacturing and Rework Facilities. Subsequently, the Agency received numerous comments requesting various clarifications and amendments to make the NESHAP more flexible for the aerospace industry. In response, EPA proposed a number of the amendments. On March 27, 1998, EPA promulgated various amendments to the NESHAP, which, among other things: clarify applicability of the NESHAP; revise definitions; clarify general standards; make changes to requirements regarding cleaning, topcoat and primer application, and depainting operations; revise certain test methods and procedures; and clarify monitoring, recordkeeping and reporting requirements. In addition, EPA revised the Maximum Available Control Technique standard for particulate hazardous air pollutant emissions from aerospace manufacturing and rework facilities. EPA also announced the availability of the Control Techniques Guideline for control of volatile organic compound emissions from such facilities. 63 Fed. Reg. 15,005 (Mar. 27, 1998).

In a separate action on March 27, 1998, EPA also proposed amendments to the NESHAP for Aerospace and Rework Facilities for facilities that rework aircraft and aircraft components used for general aviation. Written comments on that proposal are due June 1, 1998. 63 Fed. Reg. 19,216 (April 17, 1998).

EPA Extended The Public Comment Period On Draft Revisions To The Title V Operating Permit Rules. On March 25, 1998, EPA announced the opportunity for public review and comment on portions of the draft preamble and all but two sections of proposed revisions to the Title V operating permit regulations at 40 C.F.R. Part 70. EPA extended the public review period until May 26, 1998. 63 Fed. Reg. 23,254 (April 28, 1998).

EPA Added Two HAP Source Categories For Regulation. Section 112(c)(6) of the CAA requires that sources accounting for at least 90% of emissions of seven specified pollutants be subject to technology or health based control standards. Those pollutants include alkylated lead compounds, polycyclic organic matter, and mercury. Many of these compounds are already subject to regulation under Sections 112 and 129 (combustion units), and EPA is adding only two additional source categories to meet Section 112(c)(6) requirements. These categories are gasoline distribution (aviation fuel), and open burning of scrap tires. Additional analysis will determine final regulatory requirements for these categories. 63 Fed. Reg. 17,838 (April 10, 1998).

EPA Amended The Definition Of Volatile Organic Compounds (VOCs) To Exclude Methyl Acetate. The amendment was based on a comparison of the photochemical reactivity of methyl acetate to that of ethane, which has negligible reactivity. EPA concluded that methyl acetate reactivity is no higher than ethane and, therefore, the compound should be added to the list of negligibly reactive compounds in the definition of VOCs at 40 C.F.R. § 51.100(s). The definition of VOCs is revised for purposes of preparing state or federal implementation plans to attain national ambient air quality standards for ozone under Title I of the CAA, effective May 11, 1998. 63 Fed. Reg. 17,331 (April 9, 1998).

EPA Submitted The Electric Utility Hazardous Air Pollutant (HAP) Report To Congress. Clean Air Act (CAA) section 112 (n)(1)(A) required EPA to study HAP emissions from electric utility steam generating units. EPA submitted the HAP Report to Congress on February 24, 1998. According to the Report, EPA analyzed emissions from 52 coal-fired, oil-fired, and natural gas-fired electric utility boilers. The study reports that EPA found 67 HAPs in electric utility boiler air emissions. Based on screening risk assessments performed on the emissions, EPA identified and prioritized HAP emissions of concern for the industry, which consists of 684 utility plants nationwide. The Report identified mercury emissions from coal-fired plants as the HAP emission of greatest potential concern. For coal-fired plants, arsenic, dioxins and radionuclide emissions were also of potential concern and merit further study. Additionally, EPA recommended further study of oil-fired plant emissions of nickel, arsenic and dioxins. EPA concluded that HAP emission impacts from natural gas-fired plants are negligible, and, therefore require no further evaluation. Because it believes further study is warranted, EPA did not recommend whether rules to control HAP emissions from electric utility boilers are necessary and appropriate. The Report is available from EPA Headquarters, the Technology Transfer Network on the worldwide web, or the National Technical Information Service. 63 Fed. Reg. 10,378 (Mar. 3, 1998).

EPA Withdrew Its Direct Final Rule Revoking The One-Hour National Ambient Air Quality Standard (NAAQS) For Ozone In Hundreds Of Counties. EPA’s direct final rule identified those areas of the country meeting the one-hour ozone NAAQS, and for which the one-hour NAAQS was revoked and replaced with EPA’s more restrictive, eight-hour standard published in July 1997. EPA is withdrawing the direct final rule as a result of adverse comments received since issuance in January 1998. The rule is now deemed to be proposed only, and EPA intends to summarize and address all comments in a subsequent final rulemaking. 63 Fed. Reg. 12,652 (Mar. 16, 1998).

EPA Issued A Direct Final Rule Revising Certain Requirements Of The Petroleum Refinery NESHAP. EPA’s revisions are aimed at reducing and clarifying industry’s monitoring, recordkeeping and reporting obligations. Refineries would no longer be required to include in their periodic reports descriptions of actions taken which are consistent with their startup, shutdown and malfunction plans. Other areas addressed include reporting revisions for certain storage vessels, continuous monitoring systems, leak detection and repair, Group 2 process vents, and flexible operations units. The rule seeks to harmonize and eliminate overlapping reporting requirements found in various NESHAPs, including those governing wastewater stream management units regulated under the Petroleum Refinery NESHAP, the Benzene Waste Operation NESHAP, and the Hazardous Organic NESHAP. The rule would also correct miscellaneous process vent equations. 63 Fed. Reg. 13,533 (Mar. 20, 1998).

EPA Issued A Final Rule Aimed At Reducing Emissions Of Halons And Protecting The Stratospheric Ozone Layer. Section 608 of the CAA mandates that EPA develop standards and requirements governing the use and disposal of various ozone-depleting substances, including halons. Subject to limited exemptions, EPA’s final rule bans the new manufacture of halon blends; bans the intentional release of halons during repair, testing, and disposal of halon-containing equipment and during technician training; requires organizations that employ technicians to provide emissions reduction training; and requires proper disposal of halons and halon-containing equipment. Technicians include installers and servicers of regulated equipment. The rule became effective April 6, 1998. 63 Fed. Reg. 11,084 (Mar. 5, 1998).

EPA Proposed Maximum Achievable Control Technology (MACT) Standards For Oil And Natural Gas Production And Natural Gas Transmission And Storage To Reduce Emissions Of Hazardous Air Pollutants (HAPs). EPA’s action consisted of two proposed NESHAPs. One regarding production and the other regarding transmission and storage of oil and natural gas. For the production NESHAP, EPA’s proposal applies to facilities that process, upgrade or store hydrocarbon liquids (up to the point of custody transfer) or natural gas (from the well through the natural gas processing plant). For the transmission and storage NESHAP, the proposed rule applies to facilities that process, upgrade, transport or store natural gas prior to entering the pipeline to a local distribution company or final end user. Principal HAPs targeted are benzene, toluene, ethyl benzene, mixed xylenes and n-hexane. Affected emission units at major sources include glycol dehydration units and storage vessels. Certain glycol dehydration units at area sources in the oil and natural gas production category would be regulated. The proposals would require: control equipment or alternatively, pollution prevention measures; equipment leak detection and repair; monitoring and inspection; recordkeeping; and reporting. EPA proposed to add oil and natural gas production as an area source category in addition to its current major source listing. The comment period closed April 7, 1998. 63 Fed. Reg. 6288 (Feb. 6, 1998).

EPA Proposed A Federal Plan Covering Large Municipal Waste Combustors (MWC) Not Covered by Approved State MWC Plans. Section 129 of the Clean Air Act requires development of a federal plan to implement and enforce MWC guidelines if a state does not submit an approvable plan to EPA within two years after promulgation of MWC emission guidelines. The two-year deadline expired on December 19, 1997. On January 23, 1998, the EPA proposed a federal plan to implement and enforce the emission guidelines for large MWCs, i.e., with capacities greater than 250 tons per day, in states that lack such plans. For most states, the Agency expects the federal plan to be an interim one because it will no longer apply when the individual state plans are approved. The proposed federal plan includes the following elements: identification of legal authority; identification of implementation mechanisms; inventory of affected facilities; emission inventory; emission limits; compliance schedules; public hearing requirements; reporting and recordkeeping requirements; and public progress reports. The comment period closed March 24, 1998. 63 Fed. Reg. 3509 (Jan. 23, 1998).

EPA Proposed Maximum Achievable Control Technology (MACT) Standards To Reduce Emissions Of Hazardous Air Pollutants (HAPs) From Portland Cement Manufacturing. The proposed NESHAP would require new, reconstructed and existing facilities that manufacture portland cement to control emissions from affected kilns, in-line kilns/raw mills, clinker coolers, raw material dryers, and various material handling processes, such as raw mill, bagging and bulk loading systems and clinker, raw material, and finished product storage. Emission limitations would be established for dioxins/furans, along with particulate matter and opacity as a surrogate for HAP metals, and total hydrocarbons as a surrogate for organic HAPs. Control equipment would include fabric filters and electrostatic precipitators. The rule would generally apply only to major HAP sources, although minor or area sources would be required to control emissions of dioxins/furans from kilns and in-line kilns/raw mills. The proposal calls for monitoring, recordkeeping and reporting, including the use of continuous opacity monitors under specified circumstances. Certain deviations from requirements or noncompliance would trigger a site-specific operating and maintenance plan or a quality improvement plan. Comments must be received by May 26, 1998. 63 Fed. Reg. 14,182 (Mar. 24, 1998).

EPA Supplemented Its Proposed Rulemaking On Volatile Organic Compound (VOC) Emission Standards For Automobile Refinish Coatings. EPA’s original proposed rule was issued in April 1996 as part of the Agency’s initiative to regulate the VOC content of consumer and commercial products. The supplemental rulemaking proposal expands the scope of the original rule to include manufacturers and importers of coating components, in addition to manufacturers and importers of complete automobile refinish coatings. According to EPA, the expanded scope is necessary because the VOC content of a given coating depends on the VOC content levels of all coating components, and the prior proposal did not reach component manufacturers or importers. The supplemental proposal would also regulate multi-colored topcoats, change certain test methods, and exempt touch-up coatings from coverage. The comment period closed February 13, 1998. 63 Fed. Reg. 67,784 (Dec. 30, 1997).

EPA Proposed Amendments to Accidental Release Risk Management Program Regulations. EPA has proposed changes to the accidental release risk management program regulations that were originally promulgated in June 1996. The 1996 regulations require regulated sources to submit Risk Management Plans (RMPs) to EPA by June 21, 1999. The proposed amendments reflect the government’s adoption of a new industrial classification system to replace the Standard Industrial Classification (SIC) system. In addition, the changes would: add new required and optional data elements to the RMP; clarify accidental release prevention plan reporting; set forth which RMP elements are subject to claims of confidentiality; and make certain conforming changes. With limited exceptions, the RMPs would have to be submitted on computer disks so that the information can readily be included in a publicly available database. 63 Fed. Reg. 19,216 (April 17, 1998).

EPA Proposed MACT Standards To Reduce HAP Emissions From Combustion Sources In Pulp, Paper And Paperboard Manufacture. The NESHAP requires new and existing pulp and paper mills that are major HAP sources to control emissions from chemical recovery processes that involve the combustion of spent pulping liquor. The rule would impose different emission standards depending upon the type of mill (kraft, soda, sulfite or stand-alone semichemical) and whether the source is new or existing. Affected equipment would include nondirect and direct contact evaporator recovery furnace systems, smelt dissolving tanks (SDTs), lime kilns, and sulfite and semichemical combustion units. Targeted HAPs include metals, methanol, and other organic HAPs. Required controls would include electrostatic precipitators and regenerative thermal oxidizers. Recordkeeping, reporting, and monitoring would also be required, including the use of continuous opacity monitors under specified circumstances. Certain deviations from requirements would require corrective actions under a facility’s startup, shutdown, and malfunction plan. The proposal also provides a facility-wide bubble compliance alternative for existing recovery furnaces, SDTs, and lime kilns at kraft and soda pulp mills in lieu of meeting the rule’s individual emission standards for these sources. Comments must be submitted by June 15, 1998. 63 Fed. Reg. 18,760 (April 15, 1998).

TCLP Cannot Be Used To Set Treatment Standards For Particular Hazardous Wastes. In April of 1996, EPA promulgated treatment standards for spent aluminum potliners, which EPA listed as a hazardous waste in 1988. 61 Fed. Reg. 15,566 (April 8, 1996). The treatment standards were based on EPA’s universal treatment standard (UTS) limits and data derived from a delisting petition. EPA established limits for metals and fluoride based on application of its Toxicity Characteristic Leaching Procedure (TCLP), and for cyanide and various organics based on total constituent concentration analyses. The Court of Appeals first determined that it possessed jurisdiction to hear the challenges to EPA’s rule filed by a coalition of aluminum producers. The Court concluded that EPA had acted arbitrarily and capriciously by retaining the TCLP-based treatment standards, given the failure of the TCLP to predict leaching accurately at the disposal facility. The Court thus vacated at least the TCLP-based treatment standards, and also vacated the prohibition on land disposal that would otherwise have prevented untreated spent potliners from being disposed. Finally, the Court invited EPA to request a stay of the mandate pending reissuance of an interim rule to provide a treatment standard for spent potliners. The decision may have implications for other industry groups including some fluorescent light bulb manufacturers. Columbia Falls Aluminum Co. v. EPA, 1998 U.S. App. LEXIS 6767.

The District Of Columbia Circuit Held That EPA Memoranda Did Not And Could Not Alter The National Priorities List (NPL), Which May Only Be Amended Through Notice-And-Comment Rulemaking. The memoranda set out EPA’s plan to manage the cleanup of two contaminated sites together, one NPL-listed and the other not. The D.C. Circuit made it clear that this plan did not expand the NPL to include the unlisted site and did not intend to. Having decided that the memoranda were not regulations, the D.C. Circuit dismissed the case for lack of subject matter jurisdiction. Montrose Chem. Corp. v. EPA, 132 F.3d 90 (D.C. Cir. 1998).

The Sixth Circuit Held That A Private Party’s Contingent Environmental Claims Must Be Disallowed By A Bankruptcy Court Where The Party In Bankruptcy May Also Be Liable To State Or Federal Environmental Agencies. Despite the plaintiff’s timely claim for response costs under CERCLA, the Sixth Circuit noted that the Bankruptcy Code prevents multiple recoveries of the same debt from a party in bankruptcy. Consequently, unless the bankruptcy court finds upon remand that EPA is absolutely barred from bringing a claim, the private party cannot recover. In re Eagle-Picher Indus., 131 F.3d 1185 (6th Cir.1997).

The Eighth Circuit Affirmed A District Court’s Approval Of A Consent Decree Between A Group Of PRPs And The EPA. The court reasoned that non-settling parties, who objected to the settlement’s cost allocation scheme, are not bound by the allocation formula and that they are free to negotiate a separate settlement with the EPA. The court also denied non-settling parties’ request for an evidentiary hearing, finding that the right to intervene does not grant an unconditional right to an evidentiary hearing. United States v. Union Elec. Co., 132 F.3d 422 (8th Cir. 1997).

The District Of Columbia Circuit Upheld Natural Resource Damage Assessment Procedures Promulgated By The Department Of The Interior, Rebuffing Several Challenges Brought By The National Association Of Manufacturers. This D.C. Circuit holding validates the "type A" damage assessment rule, which uses assumptions and computer modeling rather than field study of the actual environmental damage. CERCLA requires the promulgation of these abbreviated procedures and the court, reviewing the rule with Chevron deference, found that the agency’s actions were not "arbitrary and capricious." National Ass’n of Mfrs. v. United States Dep’t of Interior, 134 F.3d 1095 (D.C. Cir. 1998).

The Eighth Circuit Held That When A Party’s Claim For Reimbursement Is Pending Before The Environmental Appeals Board, And When The United States Has Sued That Party In Federal Court, The Federal Court Has No Jurisdiction Over The Party’s Counterclaim Seeking Reimbursement From The Superfund. The court reasoned that such a counterclaim is not compulsory, as a pending administrative action relieves a party from any obligation to assert such a counterclaim in responsive pleadings. Additionally, the court vacated the district court’s summary judgment for the United States, finding that the United States did not conclusively establish a causal nexus between the owner’s release of hazardous materials and EPA’s response costs. United States v. Dico, Inc., 136 F.3d 572 (8th Cir.1998).

The District Court For The Eastern District Of Louisiana Held That Federal Courts Are Without Jurisdiction To Adjudicate Challenges To Any CERCLA Removal Or Remedial Action Before It Is Completed. Additionally, the court held that when cleanup is implemented in distinct phases, the completion of one stage does not open the door to challenges to stages that have not yet been completed. Concerned Citizens of Agric. St. Landfill, Inc. v. Browner, 1998 WL104656.

The District Court For The Western District Of Michigan Held, Contrary To The Bulk Of Judicial Authority, That A Release Of Hazardous Substances Must Meet A "Threshold-Of-Significance" For CERCLA Liability To Attach. The court held that plaintiffs must show that the defendant’s releases are "in nature, quantity, and durability sufficient to invoke an exception to the fundamental principle of the legal system that courts are to leave harms and losses where they find them . . . ." Most courts which have addressed this issue have held, for the purposes of liability, that there is no minimum threshold release under CERCLA. Kalamazoo River Study Group v. Rockwell Int’l, 1998 F. Supp. 111682 (W.D. Mich. 1998).

The District Court For The Northern District Of Illinois Held That The "Contractual Relationship" Language Of § 107(3)(b) Requires A Connection Between The Contractual Relationship And An Act Or Omission That Results In Contamination. The court also found that a party has not, as a matter of law, exercised due care sufficient to support a third-party defense when, upon discovering contamination on its property, it hired environmental consultants and concluded that there was little chance of migration. American Nat'l Bank and Trust Co. v. Harcros Chem. Co., 1998 U.S. Dist. LEXIS 2713.

EPA Revises The Model CERCLA RD/RA Consent Decree To Provide For Access To Superfund Site Property And Institutional Controls To Limit Land And Water Use On Such Properties. EPA published revisions to its July 1995 Model CERCLA RD/RA Consent Decree (60 Fed. Reg. 38,817 (July 28, 1995)). The revisions were prompted by EPA’s continued reliance on Superfund site remedies that are designed to prevent existing contamination from spreading off-site. The revised Model provisions generally require settling defendants to: (1) grant the United States access to the site, (2) comply with appropriate land and water use restrictions, and (3) execute and record an easement, running with the land, that grants the United States or other responsible entities a right to enforce such access rights and use restrictions. 63 Fed. Reg. 9541 (Feb. 25, 1998).

The District Court For The Eastern District Of Michigan Held That A Settlement Between Private Parties Bars Contribution Actions, Even Though The Contribution Protection Provided By CERCLA § 113(f)(2) Only Applies To Settlements With The Federal Or A State Government. In reviewing the settlement, the court found that its terms were not "outside of the ballpark" and that it was the "clear legislative mandate" of CERCLA to allow contribution bars, which "act as a catalyst for early and inexpensive settlements." The court held that Section 6 of the Uniform Comparative Fault Act (UCFA) governs settlements between private parties. Section 6 of UCFA requires that a plaintiff’s claims against non-settling defendants be reduced by the settling defendant’s equitable share of liability. As a result, plaintiffs bear the risk that they have settled for too little. Foamseal, Inc. v. Dow Chemical Co., 991 F.Supp. 883 (E.d. Mich. 1998).

The District Court For The District Of Idaho Held That Natural Resource Damages (NRD) Claims Are Tried De Novo And Review Of NRD Assessments Is Not Limited To The Administrative Record. While CERCLA provides that natural resource damages assessments conducted in accordance with Department of Interior regulations enjoy a rebuttable presumption of correctness, the court rejected the federal government’s argument that review of such assessments should also be limited to the administrative record. This is the first such ruling against the federal government and will significantly increase the difficulty of bringing NRD claims for trustees. The court also held that CERCLA allows multiple NRD actions by different trustees (i.e., federal, state, or tribal governments), but provides protection against double recovery of the same damages. United States v. Asarco, Inc., 1998 U.S. Dist. LEXIS 6172

WATER POLLUTION

The Fourth Circuit Ordered A New Trial And Reversed The Felony Conviction Of Defendants For Knowingly Discharging Fill And Excavated Materials Into Wetlands Of The United States Without A Permit. The court found rule 33 C.F.R. § 328.3(a)(3) - defining "water of the United States" to include waters which "may affect" interstate commerce or foreign commerce - impermissibly expanded the statutory meaning of the phrase. According to the court, if the rule was a statute, it would present serious constitutional difficulties, because it appears to exceed congressional authority under the Commerce Clause. Additionally, the court held that the District Court’s jury instruction that the government need not prove that the defendant know his conduct was illegal was proper, although it found the District Court did not adequately impose the applicable mens rea requirement with regard to each statutory element. United States v. Wilson,133 F.3d 251(4th Cir. 1997).

The Eighth Circuit Ruled That A State Administrative Enforcement Agreement Precludes Citizen Suit Claim For Civil Penalties. The Eighth Circuit Court of Appeals affirmed a district court ruling that a citizen suit claim for civil penalties under the Clean Water Act is precluded by the existence of an administrative enforcement agreement between the state and the polluter imposing civil penalties. The court held that if the agreement imposing civil penalties is the result of a diligently prosecuted enforcement process, however informal, the amount of penalties cannot be collaterally attacked via a citizen suit. In this case, the court found diligent prosecution when the civil penalties imposed by the state exceeded penalties imposed in similar cases and were arrived upon using the same factors that would be considered by a court. Comfort Lake Assoc., Inc. v. Dresel Contracting, Inc., 138 F.3d 351 (8th Cir. 1998).

The Fifth Circuit Held That EPA Does Not Have Authority Under The Clean Water Act To Require A State, Before It Issues A Discharge Permit, To Consult With Federal Agencies Regarding The Impact On Endangered Species. The Clean Water Act provides that EPA shall approve a state’s permitting program unless the state fails to meet one of nine enumerated criteria. The protection of endangered species is not one of the listed requirements. According to the court, EPA is not authorized to erect additional hurdles to the permitting process beyond the nine listed requirements. Therefore, the court vacated that part of EPA’s rule declaring that EPA will reject any permit, in a state with an EPA-approved permit program, that the Fish and Wildlife Service or National Marine Fisheries Service indicates will threaten endangered species. American Forest & Paper Assoc. V. EPA, 137 F.3d 291 (5th Cir. 1998).

President Clinton Announced An Expansive Clean Water Action Plan. On February 19th President Clinton announced a "clean water action plan" that includes 100 specific proposals for reducing water quality problems, protecting rivers and lakes, and reducing the threat from fish-killing microbes along the coasts. If approved by Congress, the wide-ranging proposal would costs $2.3 billion over five years and $568 million next year alone. Most of the measures are aimed at curbing polluted runoff, which administration officials describe as the number one source of contamination in rivers and lakes and the likely cause of last year’s outbreak of fiesteria piscicida in the Chesapeake Bay region. The plan also includes proposed regulations setting new national water quality standards for nitrogen and phosphorous. The proposed regulations are coupled with millions of dollars in funding to farmers, property owners, states, and local communities to assist them in complying with new standards.

EPA Promulgated A Final Rule Revising The Effluent Limitations And Best Management Practices For A Portion Of The Pulp, Paper And Paperboard Industry Category. The U.S. EPA promulgated a final rule revising the effluent limitations guidelines and standards and codifying best management practices for the Bleached Papergrade Kraft and Soda subcategory and the Papergrade Sulfite subcategory for the Pulp, Paper and Paperboard industry. These new guidelines are aimed at reducing discharges of adsorbable organic halides, chloroform, chlorinated phenolics, dioxin and furan. The final rule also promulgated new analytical methods for 12 chlorinated phenolic pollutants and for adsorbable organic halides. Finally, the final rule revised and streamlined the subcategorization scheme for the effluent limitation guidelines and standards, consolidating into 12 what had once been 26 subcategories. With the exception of the new effluent limitations for the Bleached Papergrade Kraft and Soda and Papergrade Sulfite subcategories, EPA has made no substantive changes to the limitations and standards applicable to the newly reorganized subcategories. 63 Fed. Reg. 18,504 (April 15, 1998).

The District Court For The Northern District Of New York Allowed A Clean Water Act Claim Alleging Discharges To Groundwater. The court denied a motion to dismiss a claim brought under the Clean Water Act for alleged contamination of groundwater. The complaint alleged that the contaminated groundwater was hydrologically connected to navigable waters. Acknowledging uncertainty on this issue, the court held that the broad interpretation of navigable waters under the Clean Water Act, the general policy of the act to protect the quality of surface waters, and the preliminary stage of the litigation supported the decision to allow the claim. The court indicated, however, that ultimately the plaintiff will have to trace pollutants from their source to surface water and that allegations of a general hydrological connection among all waters would be insufficient. Mutual Life Ins. Co. v. Mobil Corp., 1998 WL160820.

EPA Proposed A Revision To The Human Health Water Quality Criteria For Polychlorinated Biphenyls (PCBs) In The National Toxics Rule, Based On The Agency’s Reassessment Of The Cancer Potency Of PCBs. States authorized to implement the NPDES permit program will need to ensure that permits they issue include any limitation on discharges necessary to comply with the standards established by the final rule. The proposed human health criterion specifies a concentration limit of 0.00017 ppb total PCBs. 63 Fed. Reg. 16,182 (April 2, 1998).

EPA Promulgated A Proposed Rule Setting Effluent Limitations And Standards For Industrial Waste Combustor Facilities. EPA promulgated a proposed rule setting effluent guidelines and standards for wastewater discharges from commercially-operated hazardous waste combustor facilities regulated as "incinerators" or "boilers and industrial furnaces" under RCRA as well as commercially-operating non-hazardous industrial waste combustor facilities. The proposal limits the discharge of pollutants into navigable waters of the United States and the introduction of pollutants into publicly-owned treatment works. Sources of wastewater that would be regulated under the proposal include flue gas quench, slag quench, and air pollution control wastewater. 63 Fed. Reg. 6392 (Feb. 6, 1998) .

EPA Promulgated A Proposed Rule Setting Effluent Limitations Guidelines And Pretreatment Standards For Wastewater Discharges From Stand-Alone Landfills Unassociated With Other Industrial Or Commercial Activities. The proposed regulation would establish technology-based effluent limitations for wastewater discharges to navigable waters associated with the operation of new and existing hazardous and non-hazardous landfill facilities regulated under Subtitles C and D of RCRA. The proposal would also establish pretreatment standards for the introduction of pollutants into POTWs associated with the operation of new and existing hazardous waste landfills regulated under Subtitle C. Sources of landfill wastewater at these facilities include, but are not limited to, landfill leachate and gas collection condensate. 63 Fed. Reg. 6426 (Feb. 6, 1998)

POLLUTION CONTROL

Environmental Groups Seek To Impose TRI Reporting Requirements On Airports. EPA announced the receipt of a petition from the Natural Resources Defense Council, Defenders of Wildlife, National Audubon Society, and the Humane Society of the United States requesting that the agency initiate rulemaking to add Standard Industry Code 45 (Transportation by Air) to the list of facilities required to report releases under § 313 of EPCRA. To date, airports have avoided reporting requirements under the "motor vehicle exemption," which provides that facilities do not have to report their use of a TRI chemical if it is used "for the purpose of maintaining motor vehicles." 40 C.F.R. §372.38(c). The petitioners asserted that airports satisfy the EPCRA listing criteria (chemical, activity and information factors) based primarily on their use and release of ethylene glycol. The comment period closed on April 13, 1998. 63 Fed. Reg. 6691 (Feb. 10, 1998).

EPA Denied Petition To Remove Phosphoric Acid (PA) From The Toxic Release Reporting Requirements In § 313 Of EPCRA. On November 8, 1990, the Fertilizer Institute asked EPA to remove PA from the TRI because: (1) the chemical does not meet the statutory criteria in § 313; (2) the environmental effects attributed to PA are not effects for which manufacturers subject to § 313 reporting requirements should be held accountable; and (3) the agency used flawed assumptions and inaccurate data in its exposure assessment. EPA rejected these arguments, finding that PA does not meet the deletion criteria in § 313(d)(3). Specifically, it concluded that the phosphates generated during the neutralization of PA may cause algal blooms resulting in fish kills and adverse changes in the composition of plant and animal life. 63 Fed. Reg. 3566 (Jan. 23, 1998).

A EPA Administrative Law Judge (ALJ) Ruled The Statute Of Limitations Bars Civil Penalties Under § 312 Of The Emergency Planning And Community Right-to-Know Act (EPCRA), 42 U.S.C. § 11022. In this case, a Region III EPA ALJ considered whether the EPA was barred by the general federal statute of limitations from seeking civil penalties under §§ 311 and 312 of EPCRA because it initiated the claims more than 5 years after the violations allegedly occurred. The critical issue was whether any of the violations constituted a "continuing violation" for which the statute of limitations had not begun to run. The ALJ concluded that the §311 violations were continuing violations because they related to a one-time obligation to file material safety data sheets and, therefore, the violations continued so long as data sheets were not filed. In contrast, the ALJ ruled that since the §312 violations related to the annual filing of emergency and hazardous chemical inventory forms, they were not continuing violations because the failure to comply with the filing deadline marked "the end of the period for which the preceding year’s chemical inventory form was required to be submitted and the period for which the offending party may be held liable under EPCRA Section 312." Consequently, the statute of limitations for the §312 violations began to run on the date that the inventory forms should have been filed. In re Mafix, Inc., EPA Docket No. EPCRA-III-113 (Feb. 12, 1998).

The Toxic Data Reporting Committee Issued Draft Recommendations For Toxic Release Inventory (TRI) Data. The measures were developed by representatives of industry, environmental groups and the government in response to concerns that the regulated community and the general public misinterpret the information annually released by EPA regarding chemical releases from regulated facilities. The Committee made the following general recommendations for incorporation in EPA's annual announcement of TRI figures: (1) provide a context for the TRI numbers, including information regarding changing economic conditions; (2) place a greater emphasis on "success stories," including the prevention of chemical releases; (3) provide education materials on the data's uses; (4) create an "easy to use, easily accessible" computer program; (5) improve the facility and industry ranking; and (6) develop a separate analytical tool to further address these issues.

EPA Reproposed A June 1996 Rule That Would Require Health Effects Testing Of 20 Hazardous Air Pollutants (HAPs) Under Section 4 of TSCA. The revised proposal: (1) eliminates proposed testing requirements for phenol; (2) requires that all HAP testing be conducted in accordance with eleven recently-issued TSCA health effects test guidelines; and (3) clarifies that only entities manufacturing or importing one of the twenty HAPs in excess of 25,000 lbs. per year will be subject to any testing requirements. When a final rule is issued, all twenty HAPs will be subject to export notification requirements under section 12(b) of TSCA. The comment period closed February 9, 1998. 62 Fed. Reg. 67,466 (Dec. 24, 1997).

The Third Circuit Court Of Appeals Specifically Held That EPA Civil Rights Regulations, Issued Under Title VI, Provide A Private Right Of Action. This decision is significant because the EPA regulation, 40 C.F.R. § 7.35(b), provides that recipients of EPA funding, which includes most state and local environmental agencies, may not use criteria or methods which "have the effect" of discriminating based on race and other criteria. This decision significantly strengthens the ability of citizen groups to go to court to block permitting and siting decisions when there are concerns about environmental justice issues. In such cases, plaintiffs would no longer be required to show discriminatory intent.

Previously, citizen groups were able to challenge government actions directly under Title VI, but had to prove discriminatory intent. This standard was extremely difficult to meet, and very few environmental justice claims have been successful. Title VI also provides that federal agencies may promulgate regulations to implement the statute, which EPA has done. Up until this case, no federal appellate court had held that these EPA regulations may be enforced by private citizens in a federal court action.

Although this decision is binding only in the Third Circuit currently, companies will need to continue to watch developments in the environmental justice area closely. The decision is likely to lead to increased litigation over permitting and siting decisions in the near future. Chester Residents Concerned for Quality Living v. Seif, 132 F.3d 925 (3d Cir. 1997).

The Nuclear Regulatory Commission Cut Back the Scope of Environmental Justice Considerations in Permit Proceedings. In Louisiana Energy Services, the applicant sought to establish a uranium enrichment facility on a site between two African-American communities near Homer, Louisiana. The Atomic Safety and Licensing Board (ASLB), considering the objections of a local citizens’ group, decided to hold an "in-depth investigation" as to whether there was evidence "sufficient to raise a reasonable inference that racial considerations played some part in the site selection process."

On April 3, 1998, the NRC reversed this aspect of the ASLB decision, ruling that its role as a licensing agency would not include an evaluation of "discriminatory motives." Rather, the examination would involve "assessing the impacts of the proposed actions on minority populations, low income populations, and Indian tribes. . . . [The project] must be evaluated for what it is, not for why the drafter may have made it so." The NRC affirmed the ASLB's earlier finding that an environmental review failed to adequately describe and evaluate the disparate impact on the two nearby communities. The ASLB had previously rejected, without prejudice, Louisiana Energy’s application to construct and operate a privately funded uranium enrichment plant.

In denying a racial discrimination inquiry, the NRC held that the ASLB’s decision would stretch the National Environmental Policy Act (NEPA) to its substantive and procedural breaking points. According to the Commission, NEPA is not a civil rights law calling for full scale racial discrimination litigation in licensing proceedings. Instead, the Commission noted that a system of legal remedies has been created by Congress and the courts for resolution of racial discrimination claims. The Commission rejected any "free-ranging" inquiry by the NRC staff into the motives of the applicant, the state, or local decision makers.

Affirming the need for a disparate impact analysis, however, the NRC noted that certain effects on low income and minority communities become apparent only by considering factors peculiar to those communities. The Commission held that a disparate impact analysis is the principal tool to be used for advancing environmental justice under NEPA.

This ruling establishes important guidance for the future consideration of environmental justice issues, both in initial and in renewal permit and license proceedings.

HEALTH AND SAFETY

OSHA Issued A Final Standard To Replace The Respiratory Protection Standards Adopted In 1971. The new rule requires employers to establish or maintain a program to protect respirator-wearing employees. Under the new standard, employers must develop and implement a written program with worksite-specific procedures to be administered by a "suitably trained" program administrator. The program must include: (1) procedures for respirator selection; (2) medical evaluations of employees required to use respirators; (3) fit-testing procedures for tight-fitting respirators; (4) procedures for proper use of respirators in emergency situations; (5) procedures and schedules for respirator cleaning, maintenance, and repair; (6) procedures for use of atmosphere-supplying respirators; (7) employee training and information; and (8) procedures for regularly evaluating the program’s effectiveness. Finally, the regulation requires employers to establish and retain written information regarding medical evaluations, fit testing, and the respirator program. The new rule became effective April 8, 1998. 63 Fed. Reg. 1152 (Jan. 8, 1998).

The D.C. Circuit Court Of Appeals Stayed OSHA’s Cooperative Compliance Program (CCP) While The Court Reviews Its Legality. Under the program, employers with high injury and illness rates could work with OSHA to identify and abate hazards -- thereby avoiding an increased risk of wall-to-wall inspections under the agency’s directive. Employers subject to inspection under the CCP were those whose data reflected lost workday rates of seven (7) per 100,000 full-time employees. On February 17, 1998, the District of Columbia Circuit granted the U.S. Chamber of Commerce’s request for a stay of the CCP. Following entry of the stay, OSHA sought clarification of its terms and notified the court of its proposal to implement an interim inspection plan. The appeals court granted the motion for clarification; under the terms of the clarification, OSHA may continue to inspect employers to verify their recordkeeping but may not conduct inspections under the CCP. In March, the Chamber of Commerce filed a brief with the court arguing that the interim plan violates the stay order. Chamber of Commerce v. U.S. Department of Labor, No. 98-1036 (D.C. Cir. Feb. 1998).

OSHA Resumed Traditional Enforcement Operations, Pending A Court Ruling Concerning The Legality Of The Agency’s Cooperative Compliance Program (CCP). In February 1998, a federal appeals court issued a stay of OSHA’s implementation of the CCP. On April 6, the court ruled that the pending lawsuit did not preclude OSHA from implementing an interim plan for targeted inspections. On April 13, the agency announced its return to traditional enforcement activities, initiating inspections that will focus on a pool of 3,300 employers in 99 industries, representing workplaces with injury and illness rates at or above the national average for their industry. OSHA News Release USDL 98-144 (April 13, 1998). OSHA’s home page on the worldwide web is http://www.osha.gov.

The Supreme Court Ruled That A Party Lacks Standing Under Article III Of The Constitution To Bring A Citizen Suit To Recover Civil Penalties Unless The Party Can Also Show That It Is Entitled To Injunctive Relief To Remedy A Concrete Individual Injury. Because the ruling is based on fundamental constitutional principles, rather than the statutory language of the Emergency Planning and Community Right-To-Know Act (EPCRA) EPCRA, it establishes a precedent that may limit significantly the ability of citizen groups to bring actions for civil penalties under all environmental statutes with expansive citizen suit provisions.

Prior to the decision, there was a split in the circuits over the interpretation of EPCRA’s citizen suit provision. The Seventh and Sixth Circuits differed over whether EPCRA allowed suits for purely past violations. More specifically, the courts disagreed over whether citizens can seek penalties against EPCRA violators who do not file reports by the statutory deadline, but correct their reporting violations by submitting the reports prior to the time the citizen suit is filed.

Rather than resolving the conflicting interpretations of the scope of statutory authorization, the majority of the Court, in an opinion written by Justice Scalia, concluded that the Court must address the constitutional standing issue before determining whether the language of EPCRA authorizes a court to consider an action based on wholly past violations. Having determined that the Court must address the issue of Article III standing before proceeding further, the Court turned its attention to the "redressability" requirement for establishing standing.

Justice Scalia’s opinion analyzed the items of relief sought by the group and rejected each in turn as a basis for redressing the group’s claimed injuries. With respect to the plaintiff’s request for a declaration that the company had violated EPCRA by not filing the reports, the Court stated that, if granted, this would have no effect since there was no controversy regarding whether the reports had been filed or whether violations had occurred.

Significantly, the Court held that an order awarding civil penalties would not redress any injury to the citizen group because the penalties would be paid to the Treasury. The court also rejected the group’s contention that its request for an order directing the company to allow inspections by the group and to provide copies of reports to the group were adequate to establish standing. Although the Court acknowledged that some requests for injunctive relief could satisfy the redressability test, it concluded that injunctive relief could only be proper where the plaintiff has alleged the existence of "a continuing violation or the imminence of a future violation." No such allegation was made in this case.

In short, the Court has made clear that allegations based on past violations that are not continuing or are not likely to recur are insufficient to establish Article III standing to bring a citizen suit under the environmental statutes. In so doing, the Court accepted the argument presented by the Clean Air Implementation Project in an amicus curiae brief prepared by Morgan, Lewis & Bockius LLP that, in order to establish its standing to bring suit, a plaintiff seeking civil penalties under a citizen suit provision must allege and demonstrate entitlement to injunctive relief based on an ongoing compliance problem.

One likely result of this decision is a greater effort by citizen plaintiffs to frame allegations of continuing violation in citizen suits. Careful analysis of the facts will be necessary to determine whether such allegations meet both constitutional standards and pleading requirements under Rule 11 of the Federal Rules of Civil Procedure. Steel Co. v. Citizens For A Better Environment, 118 S. Ct. 1003 (1998).

The United States District Court For The Southern District Of Florida, Applying Florida Law, Rules That A Notice Issued By The EPA Notifying An Insured That It Is A Potentially Responsible Party At A Superfund Site, Does Not Constitute A "Suit" For The Purpose Of Triggering An Insurer’s Duty To Defend Under A Comprehensive General Liability Policy. According to the court, the term "suit" is unambiguous and must be given its plain meaning, "a proceeding in a court of law." Additionally, because the policy was issued prior to the enactment of CERCLA, the court held that the parties could not have intended the term suit to encompass a PRP letter. Finally, the court held that construing the letter to be a suit would obviate the distinction between "suit" and "claim," the latter which the insurer may investigate and settle, but need not defend. Racal- Datacom, Inc. v. Insurance Co. of North America, Case No. 95-1749-CIV (Feb. 11, 1998).

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EPA’s Office Of Civil Rights (OCR) Issued An "Interim Guidance For Investigating Title VI Administrative Complaints Challenging Permits," Setting Forth The Procedures The Agency Will Follow In Processing Complaints Filed Under Title VI Of The Civil Rights Act Of 1994 (42 U.S.C. §§ 2000d - 200d-7) Alleging Discriminatory Effects From Pollution Control Permits Issued By State And Local Agencies That Receive EPA Funding. The Interim Guidance provides that, if OCR finds a "disparate impact" on a minority community resulting from issuance of or revision to an environmental permit, the permitting agency must successfully rebut the finding, create a plan to mitigate the disparate impact, or justify the disparate impact. Failing these remedies, and in the event the permitting agency is unable voluntarily to come into compliance with EPA’s Title VI regulations, EPA may terminate funding and refer the matter to the Department of Justice for litigation. Permit modifications or renewals may pose situations where a citizen may allege that the permitting action has a discriminatory effect. Modifications resulting in a net increase of pollution impacts may provide a basis for disparate effects claims. The guidance also states that citizens may bring suit in federal court claiming a discriminatory effect without exhausting administrative remedies.

The document outlines the steps OCR will follow to process and determine the merit of Title VI complaints. The Interim Guidance also sets forth filing procedures, including proper form of pleading and timeliness requirements. Generally, complaints must be filed within 180 calendar days of final permit issuance, but that time limit may be waived "for good cause" on a case-by-case basis so as to encourage complainants to exhaust their administrative remedies under the permitting agency’s appeal process. In certain circumstances, OCR may allow filing after the appeal process is concluded. Furthermore, OCR may accept complaints filed prior to permit issuance and provide relevant information to the permitting agency for it to consider in the permit issuance process. Finally, should it determine that a complaint is premature, OCR may retain the complaint in inactive files until the permit is issued and then initiate an investigation if EPA or the complainant believes final permit issuance may be discriminatory. The EPA 90-day comment period concluded May 6, 1998. The guidance is available on EPA’s worldwide web site at http://epa.gov.oeca/oej/titlevi/html

EPA Issued A Policy On Municipal Solid Waste CERCLA Settlements At NPL Co-disposal Sites. EPA issued a "Policy for Municipality and Municipal Solid Waste CERCLA Settlements at NPL Co-Disposal Sites." The new policy supplements an interim policy issued December 12, 1989. The new policy establishes a presumptive cash-out price of $5.30 per ton for generators and transporters of municipal solid waste and municipal sewage sludge, and a presumptive cash-out percentage of 20% of total estimated response cost for municipal owner/operators of co-disposal sites. 63 Fed. Reg. 8197 (Feb. 18, 1998).

EPA Released Guidance Addressing Revocation Of The 1-Hour NAAQS For Ozone And Related Transition Issues Pertaining To The New Ozone And Particulate Matter (PM) Standards. The primary purpose of EPA’s guidance is to help ensure that States maintain momentum toward achieving cleaner air under existing programs even while moving forward with implementation of the new NAAQS. In those areas where the 1-hour ozone standard remains in effect, the rigorous nonattainment requirements of Title I, Part D, Subpart 2 of the Clean Air Act (CAA) will continue to apply until EPA makes a determination that the 1-hour standard has been achieved. These requirements include mandatory control measures, annual rate of progress requirements, and emission offset ratios for new or modified major stationary sources. In the hundreds of counties where EPA is revoking the 1-hour standard, the revised 8-hour ozone NAAQS alone will be in effect. In these areas, the detailed nonattainment provisions of Subpart 2 will no longer apply. They will instead be subject to the more general nonattainment planning requirements under other provisions of the CAA. Even for these areas, however, the guidance describes that a State may not remove, relax, or delay an ozone control measure previously adopted, unless it demonstrated no adverse affect on the attainment or maintenance of any NAAQS. With respect to PM, the existing standards and associated provisions will continue to apply for an interim period. The duration of that period will depend on a number of factors, including whether the area in question has attained the pre-existing PM₁₀ standards. Guidance for Implementing the 1-Hour Ozone and Pre-Existing PM₁₀ NAAQS, Dec. 29, 1997.

David Ashton practices with Morgan, Lewis & Bockius, LLP in the areas of environmental regulatory compliance, litigation, and administrative law. On the regulatory side, this practice includes negotiating risk based cleanups, accessing Florida cleanup programs pollution prevention planning, environmental compliance and auditing programs, and permitting in the areas of air, water, hazardous waste, health and safety law, and rule challenges. His practice embraces all aspects of solid and hazardous waste law under both federal and Florida’s hazardous waste management programs, including defending administrative enforcement and civil penalty actions, and prosecuting cleanup program eligibility and reimbursement claims. Mr. Ashton also has extensive experience in litigating private cleanup cost recovery actions in Florida. Mr. Ashton is currently Chair of the Greater Miami Chamber of Commerce’s Brownfields Redevelopment project. LL.B., University of Exeter, United Kingdom, J.D., University of Miami.

David Ashton can be contacted at (305) 579-0364; email address: asht0364@mlb.com.