Corporate Environmental Lawyer

Law360 Q&A With Lynn Grayson

By E. Lynn Grayson

Law360's Q&A series asked:

1. What is the most challenging case you have worked on and what made it challenging?
2. What aspects of your practice area are in need of reform and why?
3. What is an important issue or case relevant to your practice area and why?
4. Outside your firm, name an attorney in your field who has impressed you and explain why?
5. What is a mistake you made early in your career and what did you learn from it?

View the latest Law360 Q&A for environmental law insights on Superfund reform, water scarcity and environmental law practice tips.

 

Jenner & Block Program: “Professional Responsibility And Ethics For Environmental Lawyers” – May 8th

By E. Lynn Grayson

You are invited to join us on Wednesday, May 8, at 12:00 noon on the 45th Floor of the Chicago office for a program entitled "Professional Responsibility and Ethics for Environmental Lawyers." This professional responsibility and ethics program will focus not only on a general update of these issues but discuss legal scenarios and situations unique to environmental law practices.

Our two speakers will be: 1) Miranda K. Mandel, Loss Prevention Counsel, Attorneys' Liability Assurance Society, Inc. (ALAS); and, 2) Michael L. Shakman, Partner, Miller Shakman & Beem LLP.

Enjoy lunch, network with fellow environmental lawyers and learn what experts suggest we do to manage difficult situations that arise in our law practices.

Please forward any RSVPs to Jan Wall (jwall@jenner.com).

ELI and Jenner & Block Program: “Obama’s Second Term: Implications For Environmental Practice” – April 24th

By E. Lynn Grayson

You are invited to join us on Wednesday, April 24, at 12:00 noon on the 45th Floor of the Chicago Office, for an important luncheon program we are co-sponsoring with the Environmental Law Institute ("ELI") entitled "Obama's Second Term: Implications for Environmental Practice." This program will bring together three speakers, each of whom played a key role in environmental matters during President Obama's first term, and each of whom is very knowledgeable concerning EPA enforcement trends, emerging environmental issues, and environmental policy challenges.

The three speakers will be (1) John Cruden, currently the President of ELI, who previously served for many years as the Deputy Assistant Attorney General in charge of environmental enforcement at the Department of Justice; (2) Thomas Perrelli, Chair of the Government Controversies and Public Policy Litigation Practice at Jenner & Block, who recently returned to Jenner & Block and who previously was directly involved in environmental matters as one of the key former heads of the Justice Department; and (3) Robert Kaplan, who presently serves as Regional Counsel for Region 5 of the EPA. These speakers will share lessons learned, including what we can expect will affect business and environmental regulation during President Obama's second term.

We are privileged to partner in this program with ELI, one of the preeminent, non-partisan environmental law organizations in the country. Headquartered in Washington, DC, ELI has played a pivotal role since the early 1970s in helping to shape environmental law, policy, and management, both domestically and abroad. This program will present an insider's viewpoint on what we anticipate in environmental enforcement and regulation from the DOJ, EPA, and White House over the next four years.

Please forward any RSVPs to Elizabeth Wong (elizabethwong@jenner.com).

 

Insurer Unable To Step Into CERCLA Shoes Of Insured

By Steven M. Siros

A recent Ninth Circuit decision limited the ability of an insurer to seek CERCLA contribution and/or cost recovery from potentially responsible parties ("PRPs"). In Chubb Custom Insurance Company v. Space Systems/Loral et al., Chubb issued a pollution premises liability ("PPL") policy for a site in Palo Alto, California. Chubb's insured sought recovery from Chubb for site remediation costs pursuant to the PPL policy and after lengthy negotiations, Chubb reimbursed its insured the sum of $2.4M.

Chubb then proceeded to file CERCLA Section 107 cost recovery claims against other site PRPs. Chubb also asserted a separate claim under CERCLA Section 112(c), arguing that Chubb was subrogated to any rights its insured might have against the other site PRPs. The district court dismissed Chubb's complaint, finding that Chubb's claims were insufficient to satisfy the pleading standards articulated in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal. Chubb appealed the district court's dismissal.

The Ninth Circuit found that the insured's failure to make any written demand for response costs from other site PRPs was fatal to Chubb's subrogation claim under CERCLA Section 112(c)(2). With respect to Chubb's CERCLA Section 107(a) cost recover claim, the court found that a "subrogee—simply by stepping into the shoes of the insured via a reimbursement—cannot be liable for response costs under CERCLA, and thus cannot itself incur response costs." The Ninth Circuit therefore affirmed the district court's dismissal.

In his dissent, Justice Gould focused on the public policy implications of the majority's decision. Justice Gould was concerned that the majority opinion requires the insurer to foot the bill while other PRPs pay nothing. The dissent argued that the court's decision ignored CERCLA's polluter pays mandate and would result in increased insurance premiums.

Chubb has already expressed its intention to petition for rehearing en banc and if this is not successful, Chubb will likely seek review of the Ninth Circuit decision before the Supreme Court.

Pacific Ocean—Next CERCLA NPL Site?

By Steven M. Siros

The Center of Biological Diversity ("CBD") has filed a petition with U.S. EPA seeking to add the Northwestern Hawaiian Islands and waters of the Pacific Ocean within the United States' jurisdiction to CERCLA's National Priorities List ("NPL"). In its petition, CBD argues that the large mass of plastic debris known as the "Pacific Garbage Patch" is particularly harmful due to its impacts on marine wildlife and the coral reef ecosystems of the Hawaiian Islands. The CBD further argues that because these plastics contain toxic chemicals that are passed up through the food chain, the plastic debris is also harmful to humans that consume fish from the region.

In its press release, the CBD indicated that "this is the first time that plastic-infested waters of the United States have been nominated for Superfund designation." U.S. EPA has one year to act on the petition. In the event that U.S. EPA were to grant the CBD petition, it is unclear who might be responsible for remediating the contamination. To view the CBD petition, please click here.

Great Lakes Advisory Board Named

By E. Lynn Grayson

EPA has named the membership of the first advisory board to support implementation of the Great Lakes Restoration Initiative – an aggressive action plan addressing five urgent issues through fiscal year 2014:

1. cleaning up toxics and areas of concern;
2. combating invasive species;
3. promoting near shore health;
4. restoring wetlands; and,
5. tracking progress working with strategic partners.

The Great Lakes Advisory Board will provide advice and recommendations to the EPA Administrator, who serves as chair of the federal Interagency Task Force consisting of 11 agencies. The Great Lakes contain 21% of the world's supply of freshwater and 84% of North America's supply. Drought conditions, changing weather patterns and extremely low precipitation have resulted in record low water levels exacerbating water scarcity concerns. While the newly formed Board will address many concerns and issues confronting the Great Lakes, water levels, water stress and water scarcity considerations certainly will impact and guide much of their work. 

The first two-year appointments to the advisory board are:

• J. David Allen, Professor – University of Michigan.
• Patricia Birkholz, Founder – Great Lakes Legislative Caucus.
• Kathryn Buckner, President – Council of Great Lakes Industries.
• Naomi Davis, President – Blacks in Green.
• Molly Flanagan, Program Officer – The Joyce Foundation.
• Steve Galarneau, Director – Office of the Great Lakes, Wisconsin Department of Natural Resources.
• Jennifer Hill, Field Manager – National Wildlife Federation and Healing Our Waters – Great Lakes Coalition.
• Roger Germann, Executive Vice President – John G. Shedd Aquarium.
• Bill Hafs, Director of Environmental Programs – Green Bay Metropolitan Sewerage District.
• Michael Isham, Tribal Councilman – Lac Courte Oreilles Tribal Government and Chair of the Great Lakes Indian Fish and Wildlife Commission.
• Simone Lightfoot, Manager of Conservation & Sustainability – NAACP Detroit Branch.
• Joy Mulinex, Director – Public Policy and Great Lakes Land Conservancy Coalition Director – Western Reserve Land Conservancy.
• Jim Ridgway, Vice President – Environmental Consulting and Technology, Inc.
• Joan Rose, Professor – Michigan State University.
• Richard Stewart, Co-Director – Great Lakes Maritime Research Institute.
• Matt Thompson, Environmental Resources Coordinator – Saint Regis Mohawk Tribe.
• David Ullrich, Executive Director – Great Lakes and St. Lawrence Cities Initiative.
• Jim Wagner, City Administrator – Trenton, Michigan.

The Interagency Task Force is in the process of scheduling next steps for the Great Lakes Advisory Board in the spring.

The Great Lakes provide more than 30 million Americans with drinking water and underpin a multi-billion dollar economy. In February 2009, President Obama proposed the Great Lakes Restoration Initiative, the largest investment in the Great Lakes in two decades. GLRI funds are being used to accelerate cleanup work in the 29 remaining AOCs identified by the U.S. and Canada under the Great Lakes Water Quality Agreement.

More information on the Great Lakes Restoration Initiative: http://www.glri.us.

DOJ Not Required To Produce Interagency Memorandum in CERCLA Case

By Steven M. Siros

A recent Seventh Circuit decision rejected a PRP's efforts to obtain interagency memorandum and other communications between the Environmental Enforcement and the Environmental Defense Sections within the United States Department of Justice ("DOJ"). See Menasha Corp. et al. v. United States, (7th Cir. 2013). In 2010, the United States, on behalf of U.S. EPA and the Department of the Interior, filed a lawsuit  seeking to compel a number of alleged PRPs to remediate the Fox River Superfund Site (which remediation has been estimated to be as high as $1.5 billion).

Shortly after the lawsuit was filed, DOJ sought judicial approval of a proposed consent decree with several defendants in which the United States offered to contribute $4.5 million to the cleanup in recognition that other federal agencies (including U.S. EPA and the United States Army Corps of Engineers) had contributed to the PCB contamination in the Fox River.  Menasha Corporation ("Menasha"), one of the defendants in the underlying litigation, challenged the consent decree in part on the grounds that the federal agencies' contribution to the contamination at the site was far greater than the $4.5 million that they were proposing to contribute to the site cleanup.  Menasha was concerned that the consent decree would act as a bar to its contribution claims against the United States.  

Menasha therefore sought to obtain communications between the enforcement and defense sections of DOJ, likely hoping that these communications might evidence some collusion between the defense and enforcement sections of DOJ.  Menasha argued that since the two sections of DOJ represent separate governmental entities with divergent interests, they were in fact adversaries. Since communications between adverse parties results in a waiver of privilege, Menasha argued that it was entitled to those communications. The District Court agreed and ordered the requested materials be produced. The Seventh Circuit was not similarly convinced.

Although some might analogize this situation to the adversary relationship between the State's attorney and the public defender, the Seventh Circuit analogized the situation to one where a consumer sues a private company in a personal injury lawsuit. One division of the company might seek to have the case settled to avoid bad publicity while the other division would seek to litigate the case to avoid setting a bad precedent. The general counsel would then make a final decision but the Seventh Circuit opined that one wouldn't reasonably argue that communications between the two divisions should be produced because of the adversarial relationship between the two divisions.

The Seventh Circuit expressed concern that were it to order disclosure of internal communications between competing interests within the Justice Department, the result would be that the Justice Department could never shield attorney work product in a case like this without "a crippling reorganization of the Department."  Instead, the Seventh Circuit concluded that since the only federal party in the underlying litigation was the United States, a single party represented by a single representative, DOJ, communications between the separate sections of DOJ were not communications between adverse parties.  As such, the Seventh Circuit concluded that these communications were protected by the attorney work product privilege and need not be disclosed.

Some might argue, however, that where DOJ represents a site PRP (a defendant) and U.S. EPA (or in this case, the Department of the Interior) (in its enforcement capacity), even if there is only a single federal entity named in the litigation, DOJ should not be able to hide behind the attorney work product privilege to shield communications between the two DOJ sections. The Seventh Circuit seemed to have left this door open a little, referring in dicta to the possibility of a waiver in a situation where you have independent federal agencies "squaring off against each other as opposing parties in litigation." However, the court acknowledged that this was not the fact pattern before it and it therefore rejected Menasha's efforts to obtain disclosure of these communications.

EPA Identifies Sequestration Cuts

By Allison A. Torrence

In a letter dated February 6, 2013, then-Administrator of the U.S. Environmental Protection Agency ("EPA"), Lisa Jackson, wrote to Senator Barbara Mikulski (D-MD) to explain how the sequestration budget cuts will impact EPA's ability to protect the nation's environment and public health. Ms. Jackson identified impacts to the following EPA Programs:

• Air Programs
• Enforcement and Compliance Programs
• Tribal Programs
• Research and Development Programs
• Water Programs

Ms. Jackson also explained that the sequestration cuts will limit EPA's ability to protect communities from the risks posed by hazardous waste sites.

The sequestration budget cuts went into effect on March 1, 2013, requiring EPA to cut approximately $425 million from its $8.3 billion annual budget. In a memo to staff on March 1st, EPA's Acting Administrator Robert Perciasepe announced that, in addition to cuts in grants and contracts, EPA employees will be required to take up to 13 unpaid furlough days in the coming year. EPA employees must take four unpaid days off between April and June, at which point EPA will re-evaluate its budget and determine how many additional furlough days will be required, possibly up to a total of 13 days by the end of September.

A copy of Ms. Jackson's letter is available here.

 

EPA Releases New ECHO State Enforcement Data

By E. Lynn Grayson

U.S. EPA just released state dashboards and comparative maps that provide the public with information about the performance of state and EPA enforcement and compliance programs across the country.

Most states and tribes in the United States have the authority to implement and enforce many of the nation's air, water and waste laws. The dashboards and maps include state level data from the last five years and provide information including the number of completed inspections, types of violations found, enforcement actions taken, and penalties assessed by state. To ensure data quality, EPA made the maps and dashboards available to the states in advance of this public release, in order to provide an opportunity to make any necessary data corrections.

Users can customize the dashboards to view state activity, EPA activity, or combined activity. Where available, the site also allows users to view national averages and display state enforcement trends over time.

The interactive state performance dashboards are located on EPA's Enforcement and Compliance History Online (ECHO) website. ECHO is an EPA transparency tool that allows the user to map federal and state inspection, violation, and enforcement information for more than 800,000 regulated facilities. The state dashboards and comparative maps that are available in ECHO are part of EPA's commitment to increasing transparency and providing data to the public in a format that is easy to understand and use.

EPA will host a webinar demonstrating how to use the state dashboards and comparative maps now available in ECHO on Tuesday, February 12, at 3 p.m. EST. The demonstration will highlight the new features added to the tool, important information about the data, and how to compare data by state.

It seems enforcement data is more readily available than ever before including new information on state enforcement discussed herein. This kind of data needs to be viewed with some caution to ensure that information is accurate and updated on a timely basis. Companies need to view the existing and new ECHO data about their facilities and communicate with EPA if there is incorrect information identified about their operations. 

To register for the ECHO webinar, go to https://www1.gotomeeting.com/register/407068441.

To view the state performance dashboards and comparative maps, visit http://www.epa-echo.gov/echo/stateperformance/comparative_maps.html.

EPA's ECHO website can be viewed at http://www.epa-echo.gov.

 

 

 

Army Corps Proposes New Controls To Protect Great Lakes From Evasive Aquatic Species

By E. Lynn Grayson

The U.S. Army Corps of Engineers (USACE) recently released an updated list of controls it has identified for preventing the transfer of aquatic nuisance species (ANS) between the Great Lakes and the Mississippi River Basin.

In the Aquatic Nuisance Species of Concern White Paper, the USACE, in collaboration with our stakeholders, identified ANS of Concern and their corresponding organism types. These ANS of Concern and organism types were the initial focus of GLMRIS for the Chicago Area Waterway (CAWS). In the Inventory of Available Controls for Aquatic Nuisance Species of Concern – Chicago Area Waterway System (ANS Control Paper), USACE identified over 90 options and technologies available to prevent the transfer of these ANS of Concern-CAWS. In December 2010, USACE posted the original draft of this document for public comment. The comments on the ANS Control Paper are available for viewing.

As a part of the ongoing analysis, USACE, in collaboration with federal, state and local governmental agencies, refined the organism types warranting further consideration by GLMRIS to include fish, algae, crustaceans, and plants. Using the information provided in the ANS Control Paper, USACE identified which of the 90+ ANS Controls may be effective at preventing transfer through an aquatic pathway for these organism types in all life stages.

Through a screening and review process, USACE and governmental agencies and organizations refined the ANS Controls for fish, algae, crustaceans and plants. "Industrial biocides" that were not used commonly for conventional municipal drinking water or wastewater treatment were removed from further consideration. "Freezing," "Desiccation," "Hot Water Thermal Barrier" in the "Lethal Water Temperature" fact sheet and the ANS Controls identified in the "Benthic Barrier" fact sheet were also removed because all were deemed to be impracticable for continued effective application. USACE removed Rotenone Oral Delivery Platforms from further consideration because fish can smell the rotenone and therefore, the smell reduces the effectiveness. Researchers are now focusing on Antimycin A Oral Delivery Platforms. The Piscicides fact sheet has been updated. The remaining ANS Controls that may be effective at preventing the transfer through an aquatic pathway of algae, crustaceans, fish and plants in all life stages are presented below.

USACE is requesting comments on this information through February 21, 2013. USACE is seeking:

1. Information on ANS Controls that may be effective at preventing the transfer through the CAWS of fish, algae, crustaceans and plants in all life stages but are missing from the lists, or
2. Comments regarding specific ANS Controls identified.

The recently released list of available controls is available at http://glmris.anl.gov/documents/interim/anscontrol/screening/index.cfm.