Blog Archive

Christie Administration Seeks a Stay in EPA’s Clean Power PlanSeptember 3, 2015

New Jersey Department of Environmental Protection (“DEP”) Commissioner, Bob Martin, sent a letter to United States Environmental Protection Agency (“EPA”) Administrator Gina McCarthy formally requesting EPA to stay and reconsider its Clean Power Plan as it relates to the State of New Jersey.  The Christie Administration argues that the Clean Power Plan is an overreach by the federal government and is particularly unfair to the State of New Jersey, a state that has already made significant reductions to carbon emissions.  The Obama Administration announced the Clean Power Plan, under Section 111(d) of the Clean Air Act, on August 3, 2015, stating that it is a historic and important step in reducing carbon pollution from power plants in an effort to take action on climate change.  The Clean Power Plan establishes national standards to address carbon pollution from power plants.  The EPA proposed the rule in June of 2014 and it received more than 4.3 million public comments. 

The Christie Administration contends that New Jersey has already reduced its carbon dioxide emissions from its power sector by 33 percent, which is more than the 32 percent reduction goal that EPA set for the entire nation by 2030 under the Clean Power Plan.  Commissioner Martin, in his letter to Commissioner McCarthy, states that “consistent with our 2011 Energy Master Plan, New Jersey has already promoted cleaner and more efficient energy.”  In addition to the provisions under the Energy Master Plan, the Christie Administration is committed to driving down energy costs, promoting a diverse portfolio of clean, sustainable in-state power, promoting energy efficiency and conservation, capitalizing on new technologies and achieving a robust renewable energy portfolio standard.

Attorneys general for fifteen other states petitioned a federal court in Washington last month to block the new rules for power plants.  They requested a ruling by September 8th, one year before the states need to submit compliance plans to EPA.

Related Practice: Environmental & Land Use

Attorney: Lindsay Cambron

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The Second Circuit Orders New Trial For Defendants in Asbestos Abatement CaseJune 13, 2014

On June 10, 2010 a federal grand jury in the Northern District of New York returned an indictment against Certified Environmental Services, Inc. (“CES”), Nicole Copeland, a former CES Technical Services Manager (“Copeland”) and Elisa Dunn, a former CES air monitor and field supervisor (“Dunn”). The indictment charged the defendants with impeding the regulatory functions of the United States Environmental Protection Agency (“EPA”) and the Occupational Health and Safety Administration (“OSHA”), violation of the Clean Air Act, the Toxic Substances Control Act (“TSCA”) and the mail fraud statute.  Substantively, the government charged the defendants with aiding two asbestos companies with performing illegal asbestos removals.  The asbestos companies engaged in “rip and run” removals, in which asbestos is stripped and removed dry, often without the safeguards needed to ensure that the surrounding area is not contaminated.  These removals are cheaper to perform, but require an abatement contractor to obtain clearance of its air monitoring results from a company like CES. 

At trial, the jury found CES, Copeland and Dunn guilty of all of the counts against them.  The defendants appealed the convictions and sought a new trial based upon (1) improper “bolstering”of Government witnesses based upon those witnesses’ cooperation agreements; (2) the exclusion of evidence related to the defendants’ good faith; (3) the Government’s belated production of certain discovery material in violation of Brady v. Maryland; and (4) improper remarks in the Government’s rebuttal summation.

On appeal, the Circuit Court found that the Government, despite warnings by the trial judge, improperly attempted to bolster the credibility of key witnesses by referring to provisions of their cooperation agreements, in the absence of any attack on their credibility by the defense. The Court further held that the district court abused its discretion in several evidentiary rulings, and that the prosecutor made improper comments in his rebuttal summation, including personally vouching for an expert witness .  With regard to the Brady material, the Court found that “the district court’s ruling here reduced any prejudice to a minimum.”  The Court noted that it was disappointed by the Government’s failure to disclose evidence in a timely fashion, but that it was not grounds for a new trial.

The Court acknowledged that it “would hesitate to vacate and remand this case for a new trial based on any one of the errors . . . or perhaps even any one category of those errors.  But considering the record as a whole, [it was] compelled to conclude a new trial is warranted.”  The Court continued ”to conclude that the totality of the Government’s misconduct in this case, combined with the district court’s erroneous exclusion of evidence favorable to the defense, denied the defendants a right to a fair trial.”  The Court ordered a new trial for CES, Copeland and Dunn.  Allen previously entered into a plea agreement.

Related Practice: Environmental & Land Use

Attorney: Riza Dagli

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EPA's Rule on Portland Power Plant AffirmedJuly 31, 2013

The Third Circuit has affirmed EPA's authority to impose specific Clean Air Act ("CAA") regulations on Portland Generating Station, a coal-fired electricity generating plant located in Upper Mt. Betchel Township in North Hampton County, Pennsylvania (the "Portland Power Plant"). The Portland Power Plant is located directly across the Delaware River from New Jersey. EPA, pursuant to NJDEP's CAA Section 126(b) petition, restricted SO2 emission from the Portland Power Plant. EPA's rule authorized continued operations at the Portland Power Plant but imposed emission limits and compliance schedule to bring the Portland Power Plant into compliance with its SO2 emissions to comply with the new 1-hour SO2 NAAQS, which became effective on August 20, 2010. The Third Circuit held that EPA's rule was in accordance with the Clean Air Act, which provides that EPA can take immediate action when downwind states are affected by air pollution from upwind sources. The Court affirmed EPA's rule for the Portland Power Plant was not arbitrated, capricious, an abuse of discretion or otherwise not in accordance with the laws as it is in EPA's discretion to impose emission reductions on a single source such as the Portland Power Plant.

Related Practice: Environmental & Land Use

Attorney: Frances Stella

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Hess Corp. Agrees to Settlement with EPA for Clean Air Act ViolationsApril 27, 2012

The Hess Corporation ("Hess") has settled a lawsuit regarding Clean Air Act violations with the United States Environmental Protection Agency ("EPA") including payment of an $850,000 civil penalty and $45 million in new pollution controls for its Port Reading, NJ refinery.  The controls required by the settlement are estimated to reduce emissions of nitrogen oxide (NOx) by 181 tons per year and result in additional reductions of volatile organic compounds (VOCs).  The settlement requires new and upgraded pollution controls, more stringent emission limits and aggressive monitoring, leak-detection and repair practices to reduce emissions from refinery equipment and processing units.  The State of New Jersey will receive half of the $850,000.  The consent decree, filed in the District of New Jersey, is subject to a 30-day public comment period and court approval.

Related Practice: Environmental & Land Use

Attorney: Frances Stella

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