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The Week Ahead

Supreme Court Hears Superfund Preemption Suit; McCarthy Touts Climate Change Policies

Posted: April 21, 2014

Supreme Court justices will hear oral arguments April 23 in a case that will test whether the federal Superfund law preempts state law limits on plaintiffs' right to pursue “toxic tort” cases. A Senate field hearing in Miami Beach, FL, could highlight inconsistencies in the administration's effort to encourage local governments to prepare for potential effects of climate change.

Supreme Court

The Supreme Court will hold April 23 oral arguments in CTS Corporation v. Waldburger, a case that tests whether section 309 of the Comprehensive Environmental Response, Compensation & Liability Act (CERCLA) preempts not only state statutes of limitations that curb the amount of time a plaintiff has to sue once he or she is injured by a tortious act, but also preempts statutes of repose, which abolish the right to sue after a period of time, regardless of whether an injury is manifest.

While the current case centers on contamination from an industrial facility in North Carolina, the ruling could also determine whether plaintiffs can proceed in a case where they are seeking damages from the Marine Corps for releases from a North Carolina military base.

Manufacturers, the Department of Justice and defense attorneys have said the U.S. Court of Appeals for the 4th Circuit made an overly broad reading of CERCLA when it found in a controversial split ruling that language preempting state "statute[s] of limitations" also applies to time limits included in statutes of repose, and they want the high court to overturn the ruling.

However, the Natural Resources Defense Council and a group of environmental law professors are urging the justices to uphold the appellate decision. In recently filed amicus briefs, the environmentalists warn that residents living near contaminated sites would face increased burdens if the appellate ruling is overturned, while the law professors reiterate the plaintiffs' arguments at the heart of the litigation: that Congress intended to preempt state limits on the tort claims.

Climate Change

Sen. Bill Nelson (D-FL) is holding an April 22 field hearing in Miami Beach, FL, that could highlight flaws in the administration's policies for addressing climate change.

The hearing is intended to discuss "the economic impacts of climate change to Florida's tourism and insurance industries, as well as efforts to reduce the carbon emissions that drive climate change." And in a hearing announcement, the Senate commerce committee's science and space subcommittee notes that Florida has recorded between five and eight inches of sea level rise in the past 50 years and could could experience up to three feet of sea level rise by 2100. "The impacts of flooding, saltwater intrusion, and land erosion on Florida's coastal habitats and economies have prompted local governments to action," the panel notes.

But some local environmentalists could use the event to underscore the administration's refusal to require consideration of potential climate impacts in consent decrees governing sewer upgrades, even though they are generally encouraging local officials to make infrastructure more resilient to address potential climate impacts.

A case in point is environmentalists' pending litigation seeking to force EPA and Florida regulators to require Miami-Dade County, FL, officials to consider potential climate impacts as they upgrade sewer and other infrastructure to comply with the Clean Water Act. A federal judge earlier this month agreed to a request from EPA's lawyers to enter the decree but without the climate considerations that the Biscayne Bay Waterkeeper group is seeking. Environmentalists now say they plan to appeal the judge's decision.

Meanwhile, EPA Administrator Gina McCarthy is using Earth Week, taking place April 21-27, to tout President Obama's Climate Action Plan that includes first-time greenhouse gas rules for power plants, and the next round of GHG and fuel economy standards for trucks.

Earth Week includes Earth Day April 22, when climate change control advocates stage events to promote steps to protect the earth.

Among McCarthy's events is an April 21 appearance on Jon Stewart's The Daily Show, an April 22 discussion in Boston, MA, on climate change with other panelists including Energy Secretary Ernest Moniz, and an April 23 press conference in Cleveland, OH, to discuss air pollution.

Toxics & Pesticides

Also on Earth Day, EPA will host a workshop in Arlington, VA, seeking scientific and technical feedback on a November 2013 plan by the agency, the Fish & Wildlife Service, the National Marine Fisheries Service, and the U.S. Department of Agriculture on how to assess pesticides' risks to endangered species. The plan is in response to a National Academy of Sciences report that made a host of recommendations for improving how the agencies conduct the reviews, and officials have said the approach would apply most for registrations of existing pesticides.

But environmental and food safety groups are threatening to sue EPA over the agency's decision to register a new pesticide without first consulting with federal wildlife officials on the product's risks to endangered species, signaling that advocates plan to fight to ensure that the new assessment process should apply to newly registered substances as well as existing chemicals.

EPA on April 23 will hold its latest bimonthly public science meeting on the Integrated Risk Information System (IRIS), through which the agency performs risk assessments of chemicals -- studies that the agency often uses to underpin regulations. This week's meeting will focus on data about the risks to human health of the substances diethyl phtalate and hexabromocyclododecane.

Separately, EPA April 23 is slated to file its reply legal brief with the agency's Environmental Appeals Board (EAB) countering a company's claims that an agency enforcement action of Toxic Substances Control Act (TSCA) reporting requirements was time-barred because a five-year statute of limitations on filing reporting violations under TSCA section 8(e) had expired when EPA filed its complaint in 2010.

Elementis Chromium Inc., the company that is challenging the action, is also seeking to push back against agency claims that chemical producers have a broad duty to disclose results of health and safety studies and is alleging the claims are at odds with EPA guidance on the issue.

Energy Drilling

Hydraulic fracturing's potential harmful health effects on maternal health will be the focus of an April 21 Center for Environmental Health webinar. “Many of the chemicals associated with gas extraction and development have been connected with acute and chronic health problems in children and women, including respiratory, neurological, reproductive, and developmental impacts,” according to an announcement of the event.

Oil and gas drilling is also the focus of a separate event taking place April 22, with the Bipartisan Policy Center holding a workshop in Washington, D.C., to discuss Arctic oil drilling. According to the event's website, former federal officials, energy industry representatives and others will discuss whether there is a need for “frontier oil” from the Arctic, and also assess the technical, safety, infrastructure and access issues with ultra-deepwater oil production.

Emerging Technologies

EPA officials and others will attend an April 23-24 International Emerging Technology Symposium in Arlington, VA, to hear from the manufacturing, engineering and trade sectors and innovations they are making with products and practices aimed at water and energy efficiency, use of renewable energy sources, and other issues.

Nancy Stoner, acting assistant administrator in EPA's Office of Water, will give the keynote address at the event, and other agency officials will also speak, including Stephanie Tanner who will discuss the WaterSense program that promotes “water efficient” products.

West Explosion

Roughly one year after the April 17 fire and massive explosion at a West, TX, fertilizer plant, that killed 14 people, the Chemical Safety & Hazard Investigation Board (CSB) will hold a public meeting in West to hear preliminary findings on CSB's investigation of the incident. “This public meeting is intended to provide the residents of West, TX and other members of the public with information into how this incident occurred and how similar future incidents can be prevented or mitigated,” according to a Federal Register notice.

Following the explosion, President Obama issued an executive order aiming to improve chemical facility safety and security, tasking EPA and other federal agencies with improving coordination between government, industry and first-responders and modernizing safety policies and standards. EPA recently placed a new emphasis on facility security as officials work to implement the president's order.

SO2 NAAQS

EPA's Clean Air Scientific Advisory Committee (CASAC) will hold an April 22 conference call to discuss the agency's integrated review plan outlining its tentative approach to performing the next review of the sulfur dioxide (SO2) national ambient air quality standard (NAAQS). The aency last updated its SO2 NAAQS in 2010, introducing a new one-hour primary health-based limit of 75 parts per billion and revoking earlier daily and annual limits to focus on curbing short-term spikes in pollution.

Under EPA's plan, the agency would spend the next couple of years reviewing and seeking CASAC's input on the science on SO2's health impacts, before issuing a proposed rule in May 2017 on whether to revise the standard, and a final rule in February 2018.

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