Legal News

News Item 1: Appeals Court Finds Shell, Railroads Liable For Larger Portion of Cleanup Costs

The U.S. Court of Appeals for the Ninth Circuit reversed a portion of a lower court's judgment that declined to impose full joint and several liability on Shell Oil. Co. and two railroad companies (Department of Toxic Substances Control, State of California vs. Burlington Northern, No. 0317215P, March 16, 2007).

The appeals court also affirmed a portion of the judgment that imposed liability on Shell as an arranger under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Under CERCLA, "any person who by contract, agreement, or otherwise arranged for disposal or treatment, or arranged with a transporter for transport for disposal or treatment, of hazardous substances owned or possessed by such person" is liable.

A now-defunct company, Brown & Bryant Inc. (B&B), owned and operated a facility in which agricultural chemicals were stored and distributed. Some of the chemicals used by B&B were supplied and delivered to the facility by Shell Oil Co. Part of the land where the chemical operation was located was owned by railroad companies that were predecessors to Burlington Northern & Santa Fe Railway Co. and Union Pacific Transportation Co.

Because toxic chemicals remaining at the facility threatened groundwater and may continue to do so in the future, U.S. EPA and California's Department of Toxic Substances Control (DTSC) spent a considerable amount of money to clean up the site. The two agencies sought to recover the response costs under CERCLA, but the lower court held Burlington Northern & Santa Fe Railway Co., Union Pacific Transportation Co. and Shell liable for only a minor portion of the total cleanup costs.

The opinion can be accessed at the Web site of the U.S. Court of Appeals for the Ninth Circuit at http://www.ca9.uscourts.gov.

News Item 2: EPA Reaches Clean Air Act Agreement Governing Montana Power Plant

EPA, the Northern Cheyenne Tribe and six electric utility companies operating in Montana reached an agreement to resolve alleged excess emissions of nitrogen oxides (NOx) from the coal-fired Colstrip Power Plant near Colstrip, Mont. A consent decree was lodged on March 19 with the U.S. District Court for the District of Montana.

Under the terms of the agreement, Avista Corp., NorthWestern Corp., PPL Montana, LLC, PacifiCorp, Portland General Electric Co. and Puget Sound Energy Inc. will pay a $50,000 civil penalty to the U.S. Treasury and will implement a residential energy efficiency project valued at $100,000 on behalf of the Northern Cheyenne Tribe. The settlement will require Colstrip Units 3 and 4 to reduce NOx emissions by approximately 55 percent, a reduction of more than 14,000 tons per year.

"This settlement will significantly reduce emissions of nitrogen oxides from this plant and greatly improve visibility on the Northern Cheyenne Indian Reservation in Southeastern Montana.," said Granta Nakayama, assistant administrator for EPA's Office of Enforcement and Compliance Assurance. "We are committed to ensuring compliance with the Clean Air Act so that the environmental and public health benefits expected from the Act are achieved."

Emissions of NOx can cause the formation of haze, which reduces visibility. The companies estimate that achieving the reductions they've agreed to will cost approximately $29 million.

"This settlement will ultimately result in one of the largest reductions of NOx emissions ever realized in this region. This is a great example of what we can accomplish when a tribe, federal agencies and electric utility companies all work together toward a common goal," said Robert E. Roberts, EPA's Region 8 administrator.

For more information, contact EPA Region 8 at http://www.epa.gov/region8.

This article originally appeared in the 03/01/2007 issue of Environmental Protection.

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