Legal News

News Item 1: Federal Government, Alaska Seek Additional Funds from ExxonMobil for Continuing Natural Resource Damages Caused by 1989 Oil Spill

In accordance with the "Reopener" provision of the 1991 civil settlement with the Exxon Corp., the U.S. Department of Justice (DOJ) and the Alaska Department of Law presented the company with a proposed plan to restore shorelines in Prince William Sound and the Gulf of Alaska that still contain oil from the 1989 Exxon Valdez oil spill.

The state and three federal agencies whose trust resources were injured by the spill -- the U.S. Departments of Agriculture, Commerce, and the Interior -- have estimated the project to cost approximately $92 million over the course of several years, according to a June 1 announcement. The additional funding is being sought under the "Reopener for Unknown Injury" provision of the 1991 civil settlement which required Exxon to pay $900 million in damages at the time.

The need for this project arises from a series of studies undertaken since 2001 that document the presence of residual oil from the 1989 spill within the intertidal zone of beaches in the oil spill area. At the time of the settlement, it was not anticipated that this oil would remain toxic and continue to impact natural resources in the oil spill area. The proposed project includes identifying all locations with significant amounts of lingering oil and using advanced bioremediation techniques and other technologies to remove the larger patches. The governments are inviting ExxonMobil to work with them cooperatively to develop and implement this comprehensive project to remove the oil.

"By sending our plan in accordance with the Reopener provision, we are aggressively seeking to restore natural resource damages unforeseen at the time of the 1991 settlement," said Sue Ellen Wooldridge, assistant attorney general for the Justice Department's Environment and Natural Resources Division. "Our goal throughout this process has been to pursue all scientifically and legally appropriate means of restoration. Our proposed plan is grounded in the best and most current science available, while steadfastly adhering to the requirements of the consent decree."

The proposed project focuses on determining the locations, approximate amounts, and chemical states of all significant residual deposits of oil from the spill in the spill area, and upon seeking to accelerate the natural processes of degradation and dispersal of the lingering oil.

The governments are asserting that there is a substantial loss of habitat from relatively fresh oil that has persisted in the subsurface of certain intertidal areas since the spill.

The governments assert that the current science supports the position that the continuing bioavailability and toxicity of the lingering oil could not reasonably have been anticipated.

In further developing and implementing the restoration plan, the governments will continue to be committed to providing public review and allowing participation to ensure that the public is fully informed and that its concerns are taken into account.

On March 24, 1989, the Exxon Valdez oil tanker ran aground on Bligh Reef in Prince William Sound. The resulting spill of approximately 11 million gallons of crude oil ultimately contaminated nearly 1,750 kilometers of the Alaska shoreline with crude oil, including those of a national forest, three national parks, four national wildlife refuges, five state parks, four state critical habitat areas and a state game sanctuary.

On Oct. 8, 1991, the federal district court in Anchorage approved both a plea agreement that resolved criminal charges by the federal government against Exxon Corp. and Exxon Shipping Co. and a civil settlement that resolved the claims of the federal and state governments against various Exxon entities for past cleanup costs and natural resources damages. The plea agreement called for a $150 million fine, $125 million of which was remitted, and $100 million in restitution payments that were divided equally between the federal and state governments. The civil settlement required Exxon to pay $900 million over ten years. That money has been and continues to be used for both short-term and long-term restoration projects in Prince William Sound and the Gulf of Alaska. The settlement also included a Reopener clause stating that Exxon may be required to pay up to an additional $100 million for unforeseen natural resource damages caused by the spill.

A copy of the proposed plan is available at http://www.usdoj.gov/enrd/open.html.

News Item 2: Judge Allows Suit Against Allegheny Energy To Proceed

A federal judge has ruled that a lawsuit against Allegheny Energy Inc. over alleged violations of the federal Clean Air Act and state environmental regulations can go forward.

Last year, New Jersey, New York, Pennsylvania, Connecticut and Maryland filed suit in U.S. District Court for the Western District of Pennsylvania against Allegheny Energy Inc., based in Greensburg, Pa., and a number of its subsidiaries. The suit alleges that Allegheny made major upgrades at its Armstrong, Hatfield's Ferry and Mitchell plants that significantly increased emissions, without installing new pollution controls required by the Clean Air Act. As a result, the plants have continued to emit thousands of tons more pollution each year, including sulfur dioxide and nitrogen oxide emissions, which blow into New Jersey and cause smog, acid rain and respiratory disease.

On May 30, the court adopted the recommendation of a U.S. magistrate judge by rejecting Allegheny's attempt to dismiss the states' claims as time-barred or barred based on other technicalities.

"New Jersey will continue to vigorously pursue litigation to protect our citizens' health and meet clean air quality standards," Gov. Jon S. Corzine (D) said. "This decision proves that New Jersey can and will pursue action to enforce the Clean Air Act's protections even when the federal government abdicates its own responsibility to do so."

"We are pleased that the court has cleared the way for us to move forward with our suit," said New Jersey Attorney General Zulima V. Farber. "We are seeking to compel Allegheny Energy to install the pollution controls mandated by the Clean Air Act so that we can eliminate thousands of tons of toxic pollutants that are blowing into New Jersey. The Hatfield's Ferry plant is among the worst coal-fired power plants in terms of its harm to public health and the environment in New Jersey."

The three plants at issue in this litigation emit in total hundreds of thousands of tons of pollutants a year, according to Farber's office. The three plants put out more nitrogen oxide emissions than all the power plants in New Jersey combined and more than three times the total amount of sulfur dioxide emissions emitted by all New Jersey power plants. The Hatfield's Ferry plant is the fifth largest single source of sulfur dioxide emissions in the country.

In addition to the alleged federal violations, the suit alleges violations of Pennsylvania's air pollution laws and regulations. New Jersey and its co-plaintiffs are seeking injunctive relief to require Allegheny to reduce its harmful emissions by installing state-of-the-art pollution controls at each of the three plants. The states also asked the court to assess civil monetary penalties and order Allegheny to take additional appropriate actions to make up for the harm done to public health and the environment by its violations of federal and state law.

For additional information, contact the New Jersey attorney general's office at http://www.state.nj.us/lps/index.html.

News Item 3: Court Rules Terrorism Risks Must Be Considered For Nuclear Power Plant

The U.S. Court of Appeals for the Ninth Circuit ruled that the U.S. Nuclear Regulatory Commission (NRC) must reconsider the likelihood of a terrorist attack on an aboveground radioactive waste storage project at a power plant in San Luis Obispo, Calif. (San Luis Obispo Mothers For Peace vs. Nuclear Regulatory Commission, No. 0374628p, June 2, 2006).

The issue in the case was to whether the likely environmental consequences of a potential terrorist attack on a nuclear facility must be considered in an environmental review required under the National Environmental Policy Act (NEPA). The NRC contended that the possibility of a terrorist attack on the nuclear facility is so remote and speculative that the potential consequences of such an attack need not be considered at all in such a review. The San Luis Obispo Mothers for Peace and other groups disagree and petition for review of the NRC's approval of a proposed interim spent fuel storage installation at Pacific Gas and Electric Co.'s Diablo Canyon Power Plant.

The court found that it was unreasonable for the NRC to categorically dismiss the possibility of terrorist attack on the storage installation and on the entire Diablo Canyon facility as too "remote and highly speculative" to warrant consideration under NEPA. "In so concluding, we also recognize that the NRC's position that terrorist attacks are 'remote and highly speculative,' as a matter of law, is inconsistent with the government's efforts and expenditures to combat this type of terrorist attack against nuclear facilities," the court stated.

Citing a previous case in which the NRC emphasized the agency's own post-September 11 efforts against the threat of terrorism, the court stated that the commission couldn't justify its so-called "top-to-bottom" security review of the nation's nuclear installations while it simultaneously declared the risk of a terror attack can't be quantified.

The court's opinion can be accessed at its Web site: http://www.ca9.uscourts.gov.

This article originally appeared in the 06/01/2006 issue of Environmental Protection.

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