Superfund Reports Results
Senators Urge EPA to Act on TCE
Supreme Court Update
Momentum for UECA Continues

Superfund Reports Results

U.S. EPA’s Superfund program recently released its fiscal year 2004 annual report, which explains that EPA has been focusing on increasing community participation, strengthening public and private partnerships, enhancing cleanup effectiveness and consistency in program implementation, streamlining the enforcement process and optimizing the use of fairness initiatives, encouraging beneficial reuse and revitalization of sites following cleanup, and ensuring that remedies protect human health.

In 2004, EPA’s Superfund program:

• Spent $507 million to perform construction and post-construction activities and to conduct and oversee emergency response actions
• Obligated $104 million of appropriated funds, state cost share and responsible party settlement resources for 27 new projects
• Completed construction at 40 sites across the country for a total of 926 sites, or 61 percent of the sites on the National Priorities List (NPL)
• Conducted 678 long-term, ongoing cleanup projects at 428 sites
• Secured $680 million in cleanup commitments and cost recoveries from responsible private parties
• Listed 11 new sites on the NPL, and proposed 26 sites to be listed
• Spent $228 million to conduct and oversee site assessments and investigations, selection and design of cleanup plans, support for state, tribal and community involvement activities, and other activities
• Selected final cleanup plans at 30 sites, bringing the cumulative total of sites with final cleanup plans to approximately 66 percent of the 1,529 NPL sites

As the Superfund program matures, the size, complexity and cost of sites that are under or ready to begin construction continue to grow. In fiscal year 2004, more than 52 percent of the Superfund obligations for long-term, ongoing cleanup work were committed to nine sites. Read the report. BFN

Senators Urge EPA to Act on TCE

Senator Hillary Rodham Clinton sent a letter to the U.S. EPA on October 5, 2005, calling on the agency to issue a health-protective “interim standard” for trichloroethylene (TCE) vapor intrusion. Endicott, Hopewell Junction and Ithaca, New York, are known to be contaminated with volatile organic compounds where TCE is also known to be present.

In addition to Senator Clinton, six other senators signed onto this letter including Senators Barbara Boxer, Christopher Dodd, Frank Lautenberg, Joseph Lieberman, Gordon Smith, and Ron Wyden. BFN

 

 

 

Supreme Court Update

Investment Tax Credit Case to Be Heard
Cuno v. DaimlerChrysler was granted an allotted one hour of hearing time on the upcoming 2006 Supreme Court calendar. At issue is a ruling that Ohio’s investment tax credit ran afoul of the U.S. commerce clause by discriminating against interstate economic activity. The State of Ohio, the City of Toledo, and the local school districts provided investment tax incentives to DaimlerChrysler, which relied on this to make a decision to invest $1.2 billion and create 5,000 new jobs.

The ruling could remove state flexibility to offer such a package, according to the National Conference of State Legislatures. It could potentially create uncertainty for states looking to promote economic development within their borders should other circuit courts follow.

Legislation known as the “Economic Development Act of 2005” (S 1066/HR 2471), sponsored by Ohio Senator George Voinovich and Ohio Representative Patrick Tiberi, was presented in 2005 to protect state tax incentives from a Commerce Clause challenge.

Cooper v. Aviall Challenges Superfund Law
The December 13, 2004, Supreme Court decision in Cooper Industries Inc. v. Aviall Services Inc. essentially means that parties initiating private or voluntary cleanups without being forced to do so through an enforcement action may not seek CERCLA contribution from other responsible parties. The decision has slowed the negotiation of cleanup agreements at some CERCLA sites.

Recognizing this, effective August 2, 2005, the U.S. EPA made language changes in its Administrative Order on Consent (AOC) document in an effort to allow the costs expended by settling parties to be eligible for contribution actions.

It remains to be seen whether courts will perceive any change in the substance of the document, or whether states will follow EPA’s lead in incorporating these changes into their model documents. Courts ruling post-Cooper have divided on the question of whether a responsible party may bring a contribution action against another responsible party.

Kelo Backlash Heating Up
The court’s Kelo vs. New London decision has sparked a wave of reactionary legislation in Congress and across the states. Since the June 23 decision, legislators have responded with 92 bills related to eminent domain introduced in 20 states, and another 10 pieces of legislation at the federal level. Several states are currently studying the issue and legislation is anticipated for introduction and consideration in several more during the 2006 session. BFN

Ken Kamlet, Kelly Novak, and Janine Landow-Esser contributed to this update.

Momentum for UECA Continues

The Uniform Environmental Covenants Act (UECA) is a uniform law that was approved by the National Conference of Commissioners on Uniform State Laws (NCCUSL) in 2003. UECA establishes requirements for a new valid real estate document — an “environmental covenant” — to control the future use of brownfields when real estate is transferred from one person to another.

While 10 states enacted UECA in 2005, NCCUSL reports that 2006 is shaping up to be an even better year. More than 20 states have UECA on their plans for introduction in 2006. See the map below for details.

UECA is still pending in three jurisdictions in 2005. Favorable hearings were held on September 26 in the District of Columbia and Pennsylvania. And in the U.S. Virgin Islands, the act was scheduled for a hearing on October 12. BFN