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Litigation

NEW JERSEY CLEANUP MAY TEST NEW STRATEGY FOR COST CONTRIBUTION SUITS

New Jersey officials' efforts to require liable parties to remediate a former military ordnance-making site could test whether settling plaintiffs can use an alternative provision of Superfund law to recover cleanup costs after the Supreme Court limited the more widely used part of the law in its Aviall ruling.

The case could test whether administrative settlements are sufficient to meet requirements in alternative sections of the law for settling plaintiffs to bring contribution suits against non-compliant parties.

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INDUSTRY EYES NEW COURT DECISIONS TO BLUNT IMPACT OF AVIALL RULING

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Industry lawyers are hoping appellate courts will be forced to re-evaluate their long-standing rejection of a key Superfund provision to recover cleanup costs after the Supreme Court's landmark Aviall ruling limited parties' ability to sue under a more widely used portion of the law, attorneys said during a recent teleconference on the issue.

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COURT NARROWS PRECEDENT-SETTING DECISION 'VACATING' CLEAN AIR RULE

A federal appellate court has narrowed its landmark decision that vacated an EPA air rule it considered unlawful, rather than allowing it to remain in place while the agency revises it, in a ruling rejecting a Bush administration request to reconsider the case.

The ruling, which backs an industry challenge to an EPA-approved list of alternatives to an ozone-depleting chemical, allows courts to decide whether rejected rules can remain in place while the agency revises them.

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SUPREME COURT JUSTICES APPEAR SKEPTICAL OF PESTICIDE PREEMPTION CASE

Many Supreme Court justices appeared skeptical that federal pesticide law preempts all litigation under state law seeking damages that occurred from use of an allegedly mislabeled pesticide, according to questions the judges asked during oral arguments in the key Bates v. Dow Agrosciences case.

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COURT GRANTS EPA LIMITED CONSTITUTIONAL IMMUNITY IN WASTEWATER CASE

A federal appellate court has rejected a broad argument by EPA enforcement agents that could have made it easier for federal and state inspectors to gather wastewater samples at permitted facilities.

Instead, the court granted the agents so-called qualified immunity on narrow, fact-specific grounds to protect them from charges that their wastewater sampling efforts violated the facility and its owner's Fourth Amendment protections against unreasonable searches.

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Appeals Court Backs EPA Process For Listing Superfund Sites

A key federal appeals court has upheld EPA's process for determining whether hazardous waste sites should be placed on Superfund's National Priorities List (NPL), agreeing that agency regulations require it to consider the exposure pathway that poses the greatest risk to human health and the environment, even if that pathway is not present at the site.

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Industry Challenges Constitutionality Of California VOC Emissions Fee

The National Paint and Coatings Association (NPCA) last month filed suit in a California court challenging the constitutionality of a new state fee program for volatile organic compound (VOC) emissions. An NPCA source says the rule, if upheld, could devastate the industry in California and could encourage other states to proceed with similar programs. NPCA alleges that the fee is really a tax and does not meet California or federal requirements for levying a tax.

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NEW YORK ANNOUNCES MAJOR IN-STATE NEW SOURCE REVIEW SETTLEMENT

New York announced two landmark settlements over new source review (NSR) permit violations with in-state utilities under which the companies agreed to historic pollution cuts. In addition to the emissions reductions, the settlement is significant because it stems from the first NSR suit filed by a state against companies operating inside its borders, and comes as settlement talks between the federal government and other utilities have long been at a standstill.

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ENVIRONMENTALISTS MAY SUE TEXAS TO REDUCE HAZE AT NATIONAL PARK

Environmentalists may use a major, five-year study on causes of air pollution at Texas Big Bend National Park in a possible lawsuit against either the state or EPA aimed at improving visibility at the site. Environmentalists believe litigation may be necessary to get the state to enact regulations aimed at curbing pollution from sources found to affect the park, including power plants.

A successful suit could be duplicated in other states, because the report found emissions from across the country were affecting the park, environmentalists say.

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INDUSTRY SUES CALIFORNIA CLAIMING VOC EMISSIONS FEE IS UNLAWFUL TAX

The National Paint & Coatings Association (NPCA) last month filed suit in a California state court challenging the constitutionality of a new state fee program for volatile organic compound (VOC) emissions. An NPCA source says the rule, if upheld, could devastate the industry in California and could encourage other states to proceed with similar programs.

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