On January 6, 2010, the United States Environmental Protection Agency ("USEPA") published an Advance Notice of Proposed Rulemaking ("ANPRM") in the Federal Register for the potential development of financial assurance requirements under Section 108(b) of the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"). In this ANPRM, USEPA identified classes of facilities within three industries — Chemical Manufacturing; Petroleum and Coal Products Manufacturing; and Electric Power Generation, Transmission and Distribution — in addition to the previously noticed Hardrock Mining industry, for which it intends to consider and receive comments on the development of financial responsibility regulations. In light of the current economic climate, coupled with the fact that USEPA is over 20 years behind schedule in developing these regulations, this rulemaking may proceed quickly through the notice and comment phase, making it important that interested parties participate early in the drafting of any financial assurance regulations.

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Summary Judgment Awarded to Defendants in Lower Fox River Contribution Suit

The U.S. District Court of the Eastern District of Wisconsin recently decided two cases involving liability for PCB pollution in the Lower Fox River. Appleton Papers Inc. v. George A. Whiting Paper Co., No. 08-C-16, 2009 WL 5064049 (E.D. Wis. Dec. 16, 2009) ("Appleton Papers"); United States v. George A. Whiting Paper Co., No. 09-C-692 (E.D. Wis. Dec. 16, 2009) ("Whiting"). Appleton Papers was a contribution suit brought by two companies against 11 other potentially responsible parties ("PRPs") pursuant to the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"). Whiting, in turn, involved the lodging of a settlement between the United States and the state of Wisconsin, on the one hand, and those 11 PRPs, on the other hand, which would, protecting the PRPs from the contribution suit. In essence, both cases addressed the question of who should be responsible for funding an ongoing cleanup project designed to remove the PCBs, which the court said "is thought to be the largest of its kind ever undertaken anywhere in the world" and may cost over $1 billion. The court dismissed the Appleton Papers case, granting summary judgment to the defendants, and approved the settlement of those same parties in the Whiting case, placing nearly the entire financial burden of the cleanup on two companies. In light of the stakes, we expect the decisions may be appealed.

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Proposed Revised Ozone Standard

USEPA's proposed revision to the 8-hour ozone standard was published in today's Federal Register, 75 Fed.Reg. 2938 (January 19, 2010), as its reconsideration of the 8-hour standard set in 2008 at 0.075 ppm. Comments are due March 22, 2010. As we indicated in our previous alert on the proposed revision of the 8-hour ozone standard, USEPA proposes that the new primary standard, protecting human health, be set within the range of 0.060-0.070 ppm and that the new secondary standard, protecting human welfare and the environment, be set within the range of "7-15 ppm-hours" determined from the sum of weighted hourly concentrations, cumulated over 12 hours per day between 8 a.m. and 8 p.m. during the consecutive three-month period of the ozone season with the maximum index value. Also as previously noted, the proposed form of the new secondary standard is one with which we have yet to come to grips.

Consistent with its reconsideration of the 0.075 ppm standard, USEPA has concurrently proposed to extend the deadline for promulgating designations of the 0.075 ppm standard to March 12, 2011. 75 Fed.Reg. 2935 (January 19, 2010). The effect of this delay in promulgating designations under the 0.075 ppm standard is to avoid the confusion of overlapping ozone requirements as USEPA establishes the ultimate standard and to maintain the status quo under the current 8-hour ozone standard of 0.080 ppm for an additional year.