The MD Ohio Environmental
Update
Edited
by Sarah J. Staley
Environmental
l Toxic Tort l
Litigation
April 2010
To Our Clients and Friends,
McMahon DeGulis LLP is pleased to bring you our monthly
Ohio Environmental Update.
This Update features important state and federal cases, statutory
and regulatory changes, and policy initiatives affecting environmental law
in Ohio. New links will be
posted throughout the month on our related blog. Please visit our blog at
www.mdohioenvironmentalupdate.blogspot.com.
We hope you find the Update interesting and helpful, and we would be grateful for any feedback you might have. Thank you.
Federal Court Cases:
Long v.
Tennessee Valley Authority, 3:09-CV-114
(E.D. Tenn. March 24, 2010).
Plaintiffs
challenged TVA’s plan to address a coal ash spill under NEPA; however, the
court dismissed the challenge.
TVA had previously entered into a CERCLA Consent Agreement with US
EPA regarding the spill, and CERCLA provides that federal courts may not
exercise jurisdiction over any challenge to a CERCLA remediation plan.
National
Parks Conservation Association v. Tennessee Valley
Authority,
3:01-CV-71 (E.D. Tenn. March 31, 2010).
In
a Clean Air Act Citizen Suit, the court considered four factors to
determine whether the modifications at a coal fired power plant
constituted routine maintenance, repair and replacement. It examined the nature and extent,
purpose, frequency and cost of the modification.
National
Resources Defense Council v. US Army Corps of Engineers, 1:09-CV-588
(N.D. Ohio March 31, 2010).
NRDC
challenged the Army Corps’ issuance of a §404 permit to a fuel plant on
the grounds that the Army Corps limited the scope of its NEPA review to
those waters that are subject to the CWA. The court held that the Corps’
limitation was entitled to deference and was valid.
Natural
Resources Defense Council v. County of Dickson, Tennessee, 3:08-0229
(M.D. Tenn. April 1, 2010.)
An
order issued by the Administrator of the Tennessee Department of
Environment and Conservation does not preclude a citizen suit under RCRA
as would an administrative order issued by the Administrator of the US
EPA.
St. Louis v.
Velsicol Chemical Corp., 07-13683-BC
(E.D. Michigan March 25, 2010).
Where
a piece of property has been the subject of a CERCLA settlement as part of
a Chapter 11 bankruptcy proceeding, a federal court may later exercise
jurisdiction under the bankruptcy code over subsequently filed state law
claims involving the same contamination at the same property even where
the plaintiff was not involved in the bankruptcy proceeding.
State Cases:
Gilbert v. Cincinnati,
2010-Ohio-1473 (Ohio April 8, 2010).
Occasional sewage overflows onto private property constituted a
physical taking even though the overflows have since been
addressed.
Statutory and Regulatory Changes:
Senator Lautenberg introduces “Safe
Chemicals Act” to require safety testing for
chemicals.
If
enacted, the legislation would overhaul the Toxic Substances Control Act
of 1976.
The
new changes would facilitate the international shipment of hazardous
materials and would affect domestic transport as well. Comments are due July 6,
2010.
US EPA announces its
reconsideration of PCB use and distribution in
commerce.
Changes
would address aging PCB-containing equipment and would incorporate new
information on the health and environmental effects of PCBs. Comments are due July 6,
2010.
Ohio EPA proposes to adopt federal
Ground Water Rule.
The
new rule would protect against microbial pathogens through a risk-targeted
approach rather than imposing requirements on all ground water
systems. Comments are due May
10, 2010.
Ohio EPA proposes numerous changes
to the rules governing hazardous waste
management.
The
proposal includes new recycling requirements. Comments are due May 20,
2010.
Policy Initiatives:
The
task force is working to create a national strategy for climate change
adaptation.
Selected
facilities will generate Renewable Energy Credits (RECs) that can be used
for compliance with Ohio’s renewable energy requirements.
News:
The settlement addresses storm water run-off from Hovnanian Enterprises construction sites.
Cleveland
The Caxton
Building
812 Huron
Road-Suite 650
Cleveland, OH
44115
p
216-621-1312
Columbus
1335 Dublin
Road
Suite
216A
Columbus, OH 43215
p
614-849-0300
McMahon DeGulis's Update is published to provide information to our clients and friends. Information in this news brief should not be used as a substitute for specific legal advice. Readers are encouraged to seek professional advice.