Legal News

News Item 1: Nation's High Court To Review NSR Case Involving Duke Energy

On May 15, the U.S. Supreme Court agreed to hear a case against Duke Energy involving the Clean Air Act's New Source Review (NSR) rules.

The court's review of the case, Environmental Defense, et al. vs. Duke Energy Corporation (No. 05-848), represents only the third environmental law case in 35 years to be taken up by the high court where environmental groups alone sought review.

In 2000, the federal government filed a Clean Air Act enforcement action against Duke Energy in federal court alleging the electric utility expanded operations at 30 coal-fired electric generating units (eight power plants) in North Carolina and South Carolina resulting in significant increases in particulate- and smog-forming pollution without updating pollution controls. The U.S. District Court for the Middle District of North Carolina granted summary judgment for Duke Energy and a three-judge panel of the U.S. Court of Appeals for the Fourth Circuit unanimously affirmed the lower court's ruling on June 15, 2005 (United States vs. Duke Energy Corporation, No. 041763p). On June 24, 2005, the U.S. Court of Appeals for the D.C. Circuit reached a contrary result in reviewing industry challenges to national new source review rules (State of New York vs. EPA, No. 021387A). The Fourth Circuit subsequently denied the federal government's and Environmental Defense's request for rehearing and rehearing en banc.

Environmental Defense asked the U.S. Supreme Court to review the case after the federal government reversed course by declining to further pursue its Clean Air Act enforcement matter against Duke Energy.

U.S. Supreme Court: http://www.supremecourtus.gov

U.S. Court of Appeals for the Fourth Circuit: http://www.ca4.uscourts.gov

News Item 2: Federal Government, Baking Company Reach Settlement

In a settlement to reduce the release of ozone-depleting refrigerants into the atmosphere, a Chicago-based national baking company has agreed to stop using ozone-depleting refrigerants, the U.S. Justice Department (DOJ) and EPA announced on May 16.

Under an agreement filed in the U.S. District Court For The Northern District Of Illinois, Newly Weds Foods Inc. will take steps to prevent the continued release of ozone-depleting refrigerants -- such as hydrochlorofluorocarbons, known as "HCFCs" -- that destroy stratospheric or "good" ozone. Newly Weds will retrofit or retire all of its 39 industrial refrigeration equipment systems in the United States that are designed to hold more than 50 pounds of HCFCs with systems that use only non-ozone-depleting refrigerants by July 1, 2008. The company will also pay a civil penalty of $125,000 for alleged past leaks of ozone-depleting refrigerants.

"Newly Weds has acted responsibly, not only to correct specific past violations, but to eliminate the use of potentially-damaging refrigerants in its operations," said Sue Ellen Wooldridge, assistant attorney general for DOJ's Environment and Natural Resources Division. "We are gratified that the actions Newly Weds has agreed to take will bring the company into compliance with EPA regulations and federal law."

"(The) settlement demonstrates this administration's commitment to achieve the benefits envisioned by the Clean Air Act," said Granta Y. Nakayama, EPA assistant administrator for the Office of Enforcement and Compliance Assurance. "We are pleased that after violating our ozone protection requirements, Newly Weds is now committed to a settlement that is good environmental policy and good business practice."

HCFC refrigerants deplete the stratospheric ozone layer, and that allows dangerous amounts of cancer-causing ultraviolet rays from the sun to strike the earth. Production of some of these chemicals was stopped in 1995, and federal law strictly controls their use and handling.

This agreement -- the third national settlement with an industrial bakery company -- resolves a complaint alleging that Newly Weds violated EPA regulations regarding industrial refrigerant leak repair, testing, recordkeeping and reporting.

Newly Weds makes breading, frozen ice cream cakes, and other baked goods, as well as seasonings, batter, and capsicums (used for pickles, sauces, and peppers). The company owns and operates equipment that contains 39 industrial refrigeration systems at its eight facilities in the United States, located in Chicago.; Watertown, Mass.; Cleveland, Tenn.; Gerald, Mo.; Horn Lake, Miss.; Bethlehem, Pa.; Springdale, Ark.; and Modesto, Calif.

The consent decree will be subject to a 30-day public comment period and is available on DOJ's Web site, http://www.usdoj.gov/enrd/open.html, and on the EPA Web site, http://www.epa.gov/compliance/resources/cases/civil/caa/newlywedsfood.html.

This article originally appeared in the 05/01/2006 issue of Environmental Protection.

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