News and Analysis
Legislative and Citizens Challenges to Public Contracts
This year Roetzel & Andress won several legal victories for a client that operates a motor vehicle inspection and maintenance program known as E-check for the State of Ohio. From OMA Connections Partner, Roetzel & Andress
E-Check Extended Through Summer 2008
The Ohio General Assembly passed legislation this month containing a provision to extend the life of E-Check, the state’s mobile emission testing program in Northeast Ohio, through the summer of 2008. In July, the Strickland Administration may continue E-Check after following the state’s competitive bid process for the program.
E-Check was slated to expire at the end of this year. Without this critical program in place, Northeast Ohio faced the possibility of being downgraded by the U.S. Environmental and Protection Agency to “severe non-attainment” for the national ambient air quality standards (NAAQS). A downgrading in the NAAQS results in more expansive requirements being placed on the region, pursuant to the federal Clean Air Act, and further limits the region’s economic development opportunities pursuant to the federal Clean Air Act.
The OMA co-authored a letter with other business groups informing the legislature of the importance of mobile emission testing programs and the affect not having one might have on NE Ohio.
EPA Air Chief Meets with OMA Environment Committee
The chief of the Division of Air Pollution Control, Bob Hodanbosi, met this week with the OMA Environment Committee. Among the issues he addressed were general air quality issues, ozone and PM 2.5 air quality challenges, a request for redesignation/nonattainment, permitting issues, an emission banking program and Advantage Ohio (a comprehensive program of the Strickland administration to improve agency performance for customers).
Consider joining (at My OMA) the Environment Committee to participate in policymaking to protect manufacturing, and to receive timely information you can use in your work right now.
Former Michigan Governor Engler, NAM President, Addresses OMA Board
Former Michigan Gov. John Engler, current president of the National Association of Manufacturers, visited Columbus on December 4 to meet with Gov. Ted Strickland and, separately, with the OMA Board of Directors. Engler’s meeting with Governor Strickland focused on the impact of proposed federal ozone regulations on manufacturers, especially those in Ohio and throughout the Midwest. Engler is seeking the support of Governor Strickland to help pass favorable regulations.
In his remarks to the OMA Board, Engler offered his perspective on several federal issues relevant to manufacturers. He discussed the current climate regarding tax policy, national energy strategy, infrastructure improvements, as well as foreign competition.
Midwest Governors Adopt Greenhouse Gas Platform
The Midwest Governor’s Association released an “Energy Security and Climate Stewardship Platform for the Midwest” this week. The goal of the platform is to “maximize the energy resources and economic advantages and opportunities of Midwestern states while reducing emissions of atmospheric CO2 and other greenhouse gases.”
The governors set targets for energy efficiency, biobased products and transportation, renewable electricity, and advanced coal and carbon capture and storage. Several specific initiatives were proposed for the region.
The platform calls for a regional carbon cap-and-trade program. Governor Ted Strickland did not sign on to the cap-and-trade proposal. His spokeman said: “The governor believes a national approach is preferable to a piecemeal regional approach. It’s a national problem.”
Voinovich Urges Entrepreneurial Approach To Climate Change Policy
U.S. Sen. George V. Voinovich spoke last week at a media breakfast at the National Press Club in Washington, D.C. on the issue of climate change. “Today, we stand at a crossroads,” Voinovich told the audience. “The scientific debates of the last several decades on the essential facts of global warming are largely over…and it is time for us to agree on a public policy response.”
While many policymakers are supporting regulatory-centered solutions like those found in Europe, Voinovich favors an approach more technology-based, entrepreneurial and innovative in nature. Senator Voinovich said such an approach would be more effective at reducing emissions and could be as much as seven times cheaper than complying with the Kyoto Protocol, according to some economists.
Voinovich characterized the challenge of reducing CO2 emissions as “fundamentally different than any other environmental challenge we have undertaken.” He voiced his commitment to taking deliberate and measured steps toward a comprehensive and economically viable solution.
New Developments in Cost Recovery and Contribution Actions Under CERCLA
Under CERCLA §113(g)(2)(A), an initial action for recovery of costs must be commenced for a removal action within three (3) years after the completion of the removal action. Under CERCLA §113(g)(2)(B), an initial action for recovery of costs must be commenced within six (6) years after initiation of physical on-site construction of the remedial action. Now, the Sixth Circuit Court of Appeals has held that parties who perform a cleanup under a consent decree with the government must institute recovery of their cleanup costs from other potentially responsible parties (“PRP”) within three (3) years of the issuance of the consent decree. See RSR Corp. v. Commercial Metals Co., 2007 WL 2048925 (“RSR Corp”).
In RSR Corp., a battery reprocessing facility and a responsible party (“RSR”), entered into a consent decree with the United States. Pursuant to the consent decree, RSR agreed to reimburse the United States for EPA’s past and future response costs and to finance the remedial work to finish the cleanup of the site. Nearly four years after RSR entered into the consent decree, RSR filed a contribution action against another PRP, Commercial Metals Co., in order to recover clean up costs incurred by RSR.
However, the Court ruled that RSR was barred from seeking claims of contribution from other PRPs pursuant to the statute of limitations set forth by CERCLA §113(g)(3). CERCLA §113(g)(3) states that a responsible party must bring an action for contribution for any response costs or damages within three (3) years after (A) the date of judgment in any action under CERCLA for recovery of such costs or damages or (B) the date of an administrative order under §122(h) or §122(g) or an entry of a judicially approved settlement with respect to such costs or damages. In opposition, RSR argued that because the consent decree permitted RSR to incur unknown liability for future clean up costs, the statute of limitations could not commence until the corporation became aware that it would actually incur additional clean up costs beyond the costs specifically enumerated in the consent decree. As such, RSR argued that its situation should be subject to the statute of limitations set forth by CERCLA §113(g)(2), wherein a responsible party who initiates an action for the recovery of costs it has incurred for the clean up of a property may initiate its action against other PRPs within six (6) years after the beginning of the remedial action. CERCLA §113(g)(2). Despite RSR’s argument, the Sixth Circuit Court held that CERCLA §113(g)(3) applies, allowing a party three (3) years from the date it enters into a settlement with the United States, for the clean up of a property, to file a contribution action against other PRPs.
Other recent developments include a U.S. Supreme Court decision issued on June 11, 2007. See United States v. Atlantic Research, 127 S. Ct. 2331 (2007). See also “U.S. Supreme Court Holds CERCLA PRPs May Bring Cost Recovery Actions for Voluntary Cleanups,” Roetzel & Andress Environmental Alert, June 2007. Under CERCLA §107(a), a PRP may institute a cost recovery action against other PRPs in order to recover clean up costs already incurred. Notably, in United States v. Atlantic Research, the Supreme Court eliminated the need for a PRP to wait for an enforcement action by the government prior to bringing their claim for cost recovery pursuant to CERCLA §107(a).
The Sixth Circuit Court of Appeals ruling in RSR Corp. should encourage entities who are conducting cleanup following a settlement with the United States to revaluate their remediation files and designate the applicable statute of limitations deadline in order to ensure that the corporation maintains its ability to seek clean up cost contribution from other PRPs. Moreover, the RSR Corp. decision should embolden such entities to commence PRP investigations well in advance of the statute of limitations deadline in order to ensure that the entity has identified all PRPs who may be liable for contribution in a clean up action. Finally, the U.S. Supreme Court’s ruling in United States v. Atlantic Research should encourage entities conducting voluntarily clean up to reevaluate the possibility of pre-enforcement cost recovery actions against other PRPs pursuant to CERCLA §107(a).
This article is informational only and should not be construed as legal advice.
Roetzel & Andress LPA
From OMA Connections Partner, Roetzel & Andress LLP
Ohio EPA to Unveil “Tox-Minus Program” This Month
Ohio EPA Director Chris Korleski has quietly announced plans to roll out the “Tox-Minus” program aimed at reducing Ohio’s overall toxic emissions. Due in large part to electric utility plant emissions, Ohio is perennially on the top of US EPA’s Toxic Release Inventory (TRI). TRI reports are released annually and list the states in order of their total toxic emissions. While specific details of the plan are still being worked out, the plan is shaping up to be a voluntary program that seeks to ask businesses with toxic emissions to reduce those emissions beyond what they are already permitted to do.
The Director does not envision strict reporting for those companies who choose to participate nor any enforcement of the program. Rather, the program is simply a way for Ohio EPA to publicize which companies are stepping up and doing what they can economically do to make Ohio’s environment cleaner. If you are interested in learning more, please plan to attend the OMA’s Committee Day on September 19th. The Director is scheduled to address the Environment Committee and will likely speak in detail about this program.
Ohio EPA to Unveil “Tox-Minus” Program Next Week
Ohio EPA Director Chris Korleski will unveil the details of his “Tox-Minus” program next week. The program’s intent is to try and move Ohio off of the top of the Toxic Release Inventory (TRI), an annual report from US EPA. Look for full details of the program and how it might affect industry next week.
NGA Gathering Continues Discussion on Global Warming
Climate change discussions at next week’s annual meeting of the National Governors Association come on the heels of a report by the Union of Concerned Scientists that shows the average heat index for northern Ohio could mirror summer temperatures for the state of Georgia before the end of the century, with central and southern parts of the state suffering a corresponding warming trend. That would be the worst-case scenario, says UCS and the National Environmental Trust, though a smaller rise in temperature could still bring Lake Erie counties even with conditions in central Kentucky by 2070, producing various impacts on agriculture, wildlife, and public health.
The report, “Confronting Climate Change in the U.S. Northeast,” focused primarily on Atlantic states while also measuring the effect of global warming in western Pennsylvania and northeast/eastern Ohio. Those areas, historically limited to an average of one day over 100 degrees each summer, face as many as 25 days over the century mark if higher greenhouse emissions prevail, said experts including Dr. Stephen Matthews of The Ohio State University, who served on the woodlands panel.
Matthews’ own specialty is in bird habitat species, one of several wildlife issues raised by the consortium of scientists. They said rising temperatures are expected to alter the makeup of forests, with stands of maple, beech, and birch trees giving way to more heat-hardy species absent major changes in human behavior.
“What is needed now is a strong, sustained, and well-coordinated effort between governments at all levels, businesses, civic institutions, and individuals to adopt policies, programs, and practices that accelerate the adoption of clean, efficient energy choices,” said the report. “The costs of delay are high. For every year of delay in beginning significant emissions reductions, global concentrations of heat-trapping gases rise higher and the goal of avoiding dangerous climate change becomes more difficult and more costly to achieve.”
Some of the biggest changes could be felt in agriculture, said the report, with contrasting extremes of too much spring rain for effective planting and too little summer precipitation for necessary growth. Corn and soybean farms may well have to shift to more heat-tolerant varieties, as would fruit growers. On the livestock front, the report noted as an example that the state of Pennsylvania lost more than $44 million in its dairy industry due to “heat stress” on cows in 2005.
To mitigate the effects of global warming, scientists recommended several measures:
– Accelerating the transition from fossil fuels to clean, renewable energy resources (e.g., solar, wind, geothermal), aided by market incentives and regulations.
– Embracing efficiency by purchasing energy-efficient lighting and small appliances and replacing vehicles, heating, and cooling systems, motors, and large appliances with more efficient models as the existing equipment reaches the end of useful life.
– Using state and municipal zoning laws, building codes, and various incentives to encourage energy-efficient buildings, discourage urban sprawl, provide low-emissions transportation alternatives, and avoid development in vulnerable coastal areas and floodplains.
Topics such as these will be among discussions at the National Governors Association meeting July 20-23 in Traverse City, Michigan. “Gubernatorial Policy Tools to Address Climate Change” will be held during the Natural Resources Committee meeting on Sunday, July 22 at the Grand Traverse Resort and Spa. Governors and panelists will focus on current climate issues facing states, including efforts to address global warming and ways to effectively address climate change at both the state and federal level.
“Global climate change is one of the most pressing issues our nation is currently facing,” said Utah Gov. Jon Huntsman, Jr., the committee chair. “This session topic gives governors the opportunity to discuss with each other on regional, national, and global levels ways we can effectively address this important issue.”
The discussion will include committee members and three panelists: Thomas Peterson, executive director of Center for Climate Strategies; Jonathan Schrag, executive director of Lenfest Center for Sustainable Energy; and Robert Donkers, European Union counselor of environmental affairs for the European Commission Delegation in Washington, D.C.
Gov. Ted Strickland’s office said Thursday that the governor had joined this year’s winter meeting and was not planning to attend the Traverse City gathering.
The preceding article is an excerpt from The Hannah Report, Ohio’s daily legislative newsletter providing independent, timely and comprehensive coverage of state government. For more information, please contact Hannah News Service at 614.228.3113.