Corporate Environmental Lawyer

Communications Between DOJ Attorneys Representing Separate Agencies Ordered Disclosed

By Steven M. Siros

DOJ attorneys representing the United States Army Corps of Engineers (the "Corps") and the United States Environmental Protection Agency ("EPA") found themselves unable to rely on the attorney work product, attorney-client, or deliberative process privileges to avoid disclosure of internal communications relating to a pending CERCLA consent decree.  In Menasha Corporation, et al. v. United States Department of Justice(E.D. Wis. 2012), plaintiffs filed FOIA requests seeking disclosure of communications between the Corps and EPA relating to a consent decree, including communications between DOJ attorneys representing the two government entities.  The DOJ argued that it was entitled to withhold disclosure of these attorney communications pursuant to the above-mentioned three privileges.  Plaintiffs argued that the DOJ lawyers represented separate client agencies with adverse interests in the litigation and that a party's disclosure of privileged communications to an adverse party typically waives the applicable privilege.

The court agreed, noting that EPA (in its enforcement capacity) and the Corps (as a PRP) are Executive Branch agencies with competing interests.  According to the court, "attorneys who represent parties with adverse interests waive attorney-client and work product privileges as to documents they willingly share with their adversaries."  The court found DOJ's argument that it represented a single client, the United States, unavailing.  Here, DOJ's Environmental Enforcement Section is responsible for coordinating enforcement efforts whereas the Environmental Defense Division is responsible for coordinating defense litigation strategies.  Because the United States has competing interests in this case, it properly had separate counsel from the Enforcement Section and the Defense Division independently representing the interests of both respective agencies.  However, because the interests of these two agencies were adverse, the court found that communications between them were not privileged and had to be disclosed.

This decision will have obvious implications at any site where there is a government agency PRP.  It might also cause DOJ lawyers to be more careful with respect to internal communications.  To see a copy of this decision, please click here.

Ongoing Cleanup Precludes Plaintiff From Establishing RCRA Imminent And Substantial Endangerment

By Steven M. Siros

A recent decision from the Eastern District of Wisconsin rejected plaintiff's efforts to demonstrate RCRA imminent and substantial endangerment, notwithstanding the presence of benzene in indoor air in the basement of a facility.  In Tilot Oil, LLC v. BP Products North America, Inc., plaintiff brought a RCRA citizen suit against BP, seeking to compel BP to remediate petroleum contamination that had impacted, and continues to impact, plaintiff's property.  According to the plaintiff's allegations, when the water table under its facility rises, groundwater contaminated with petroleum constituents has been observed above the floor slab in the basement.  Indoor air sampling in the basement indicated the presence of petroleum-hydrocarbons (benzene) at levels that, although they did not exceed the OSHA PELs, did exceed applicable NIOSH recommended exposure limits, Wisconsin's vapor action levels, and U.S. EPA screening levels.  As a result of the contamination, plaintiff has been forced to continually maintain and operate a ventilation fan in the basement and plaintiff had voluntarily elected to restrict employee activity in the basement (although there was some dispute as to whether the basement had ever really been used).  Over the past several decades, BP has taken, and continues to take, a number of remedial actions to address the contamination at issue under the oversight of the Wisconsin Department of Natural Resources ("WDNR"), albeit voluntarily and not as a result of any order being entered.  These remedial actions were intended to in part to address the contamination that was present on plaintiff's property, including the contamination that was impacting the basement of plaintiff's facility.

There was no dispute that BP was responsible for the contamination that was impacting plaintiff's property; instead, BP argued that (1) plaintiff had not offered sufficient evidence of potential endangerment and (2) there is no injunctive relief that might be granted because of the ongoing WDNR-approved remedy.  The court rejected BP's argument that there was no injunctive relief that might be granted, noting that plaintiff had presented evidence of potential additional remedial activities that could be taken.  However, according to the court, just because further action could be taken does not mean that it is necessary.  The court noted that testing showed that the levels of benzene present in the basement while the ventilation fans were running did not exceed the OSHA PELs.  The court rejected plaintiff's argument that exceedances of U.S. EPA screening levels equates to substantial endangerment, noting that these merely set the level at which further investigation is required; they are not a determination of actual danger.  As to the Wisconsin vapor action levels, exceedances of these levels again merely indicate that further action is required, which the court noted was occurring (BP's ongoing remediation and the operation of the ventilation fan in the basement).  With respect to the NIOSH exceedances, the court found that to be a relevant factor but not a determinative factor.  According to the court, "when the [ventilation] fan is running, there is no substantial threat.  And, while there may still be some threat of harm, through the possibility of the fan being shut off or losing power, that harm is not substantial or serious in that it necessitates action; it is simply too remote."  The court also found relevant the fact that plaintiff had never really used the basement for any activity in the first instance.

This case is important in that it could be seen as providing some degree of protection from RCRA citizen suits for persons engaged in ongoing remedial activities under the supervision and oversight of a regulatory agency, assuming of course that the case is upheld on appeal.  Typically, parties that are faced with RCRA citizen suit claims in situations where there are ongoing remedial activities will raise abstention and/or primary jurisdiction defenses.  Demonstrating that there is not a threat of imminent or substantial endangerment is typically an uphill battle.  Here, however, the court seemed to go out of its way to reject plaintiff's efforts to claim that the ongoing remediation was insufficient or inadequate.  The decision can really be summed up in footnote 16 in the decision:  "Ultimately, [plaintiff's] argument appears to be that [BP America] is simply not doing enough regarding the speed of cleanup.  However, RCRA is not intended to remedy such a situation as long as there is no potentially imminent and substantial endangerment."  To see a copy of the order, please click here.

WHO Announces Second Meeting On Global Collaboration In Chemical Risk Assessment

By E. Lynn Grayson

The World Health Organization (WHO) has announced its second meeting focused on strengthening global collaboration in chemical risk assessment to be held 29-30 March 2012 in Bonn, Germany. The first meeting was held in March 2010.

The two day meeting will follow up on key issues and priority actions to address the needs identified in March 2010 including: capacity building/training; chemical risk assessment/sharing knowledge; risk assessment methodology; and, research. The objective of the first day of the meeting is to provide an update on tools developed to increase capacity globally in chemical risk assessment and propose strategies to enhance update of risk assessment methodologies. The objectives of Day 2 of the meeting are to further explore interest in participating in a WHO Risk Assessment Network, to discuss the Network design in terms of vision, goals and objectives, structure and function, as well as to propose options for its implementation.

The WHO previously identified ten chemicals of major public health concern that are an important focus in the continuing risk assessment work:

1. Air pollution
2. Arsenic
3. Asbestos
4. Benzene
5. Cadmium
6. Dioxin and dioxin-like substances
7. Inadequate or excess fluoride
8. Lead
9. Mercury
10. Highly hazardous pesticides

More information about this upcoming meeting and WHO's outreach on chemicals and related risk assessment is available at http://www.who.int/ipcs/en/.

Superfund Site Reopened to Address Vapor Intrusion Issues

By Steven Siros

In 1992, a consent decree was entered into between U.S. EPA and two PRPs to address contamination at an NPL site in Mountain View, California.  In June 2001, U.S. EPA certified completion of remediation activities per the 1992 consent agreement.  Almost ten years later, in August 2010, U.S. EPA reopened the ROD, finding that the original remedy was not protective of human health and the environment because it did not address the vapor intrusion pathway.  A ROD amendment was issued and on December 21, 2011, a stipulation to amend the 1992 consent decree was entered which requires the PRPs to undertake additional remedial measures to address the vapor intrusion pathway at the site.

This is likely to become an increasingly frequent scenario as regulatory agencies re-evaluate whether remedial actions that were completed years ago continue to be sufficiently protective of human health and the environment.  In many situations, it is likely that these sites will be reopened and PRPs will be forced to take additional remedial action to address vapor intrusion issues.  To see a copy of the Joint Stipulation to Amend the Consent Decree, please click here.

New EPA Draft Report Links Contaminants Found In Groundwater To Fracking

By Steven M. Siros

On December 8, 2011, the United States Environmental Protection Agency ("U.S. EPA") issued a draft report noting a need for the collection of more baseline data, greater transparency on the chemical composition of fracking fluids and more care to be exercised with respect to well construction and testing.  The draft report was issued following U.S. EPA's November 9, 2011 release of the preliminary findings of an investigation it conducted near the town of Pavillion, Wyoming which found the presence of chemicals commonly used in fracking (benzene, naphthalene and diesel) in groundwater in the vicinity of 169 natural gas production wells.

Although the draft report recommends additional testing to determine the vertical and horizontal extent of the contamination, the draft report is important for its conclusion that fracking fluids are the likely source of the contamination of the Pavillion drinking water aquifer (after having ruled out agricultural chemicals as a potential contamination source). The draft report is already attracting significant attention. Senator James Inhofe has already gone on record criticizing the draft report, noting that "this announcement is part of President Obama's war on fossil fuels and his determination to shut down natural gas production…. It is irresponsible for EPA to release such an explosive announcement without objective peer review." On the other hand, environmental groups such as the Natural Resources Defense Council have lauded the report as an acknowledgement of its position that fracking poses a significant environmental threat.

Beginning on December 14, 2011, the draft report will undergo a 45-day public comment period and a 30-day peer review process (although not the more heightened peer review that would be required if the draft report were considered a highly influential scientific study).

ATSDR Releases New Priority Substance List

By Katherine M. Rahill

On November 3, 2011, the Agency for Toxic Substances and Disease Registry ("ATSDR") published its 2011 Priority List of Hazardous Substances.  Pursuant to Section 104(i)(2)(A) of the Comprehensive Environmental Response, Compensation, and Liability Act  ("CERCLA"), ATSDR, in collaboration with EPA, is charged with developing a list of hazardous substances, in priority order, that are most commonly found at sites on the National Priorities List ("NPL") and pose the most significant potential threat to human health.  The Substances Priority List consists of the hazardous substances receiving the top 275 highest scores according to ATSDR's priority calculation.  ATSDR calculates a priority score for each hazardous substance that is determined to be a "candidate" for the list, based on its presence in at least one environmental media at three or more NPL sites.  For 2011, the candidate list was 847 substances long.

EPA’s Malicious Prosecution Costs U.S. Government $1.7 Million

By Scott Ritter

Editor's Note: Mr. Ritter is a 1L law student at Indiana University Maurer School of Law and recently participated in a shadow day program with the Firm.

An ordeal that began in 1996 has culminated in a judgment of $1.7 million for former refinery manager, Hubert Vidrine. The U.S. District Court for the Western District of Louisiana awarded Vidrine that sum based on the EPA's malicious prosecution for violations of the Resource Conservation and Recovery Act. The Court held that the EPA did not have probable cause that Vidrine was storing hazardous waste, and that the EPA's 1996 search of the Canal Refinery Company in Church Point, Louisiana did not yield evidence of RCRA violations.

EPA Releases Memo Outlining Enforcement Discretion for CERCLA Liability Protection

By Phoebe B. Scott

On September 21, 2011, the Environmental Protection Agency’s (“EPA”)  Office of Site Remediation Enforcement released a memorandum titled “Enforcement Discretion Guidance Regarding the Affiliation Language of CERCLA’s Bona Fide Prospective Purchaser and Contiguous Property Owner Liability Protections.” The memorandum outlines how EPA intends to exercise its enforcement discretion for parties who would otherwise qualify for liability protection defenses under the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”). The memo was sent to the Regional Counsel and Superfund National Policy Managers for EPA regions I-X.

CERCLA Claims Against Environmental Contractor Allowed To Proceed

By Steven M. Siros

A federal district court refused to dismiss a lawsuit alleging CERCLA liability on the part of several environmental contractors that performed an environmental assessment and cleanup of a contaminated property.  In Bancorpsouth Bank v. Environmental Operations, Inc., et al., Bancorpsouth filed a CERCLA cost recovery lawsuit against several environmental contractors that were involved in the remediation of a contaminated site.  Bancorpsouth alleged that the contractors had known since at least 2001 that there were hazardous materials on the property and that the contractors "engaged in the deliberate disturbance, unearthing, spilling, moving and re-releasing" of these hazardous materials on the site.  Furthermore, Bancorpsouth alleged that the contractors failed to properly design and carry out the construction of an engineered cell on the site and to adequately screen materials from the dirt on the site prior to the dirt being spread around the site as fill.  The contractors moved to dismiss the complaint, arguing that Bancorpsouth had failed to allege that they fell within any of the categories of CERCLA responsible parties or that they had actual control or the authority to control any of the environmental operations on the site.

In refusing to grant the contractors' motion to dismiss, the court found that Bancorpsouth's failure to identify a specific category of CERCLA responsible party was not fatal to its CERCLA claims.  Instead, the court it sufficient that the complaint alleged that the contractors knew that the site was contaminated and that they deliberately disturbed those contaminated materials.  With respect to Bancorpsouth's failure to allege that the contractors had actual control or the authority to control, the court noted that "while discovery may reveal that the [contractors] had no authority to control the handling of the hazardous materials on the property", the allegations in the complaint were sufficient to place the contractors on notice of the CERCLA claims against them.

CERCLA's "Federally Required Commencement Date" Preempts State Statute Of Repose

By Steven M. Siros

A Georgia federal district court recently found that CERCLA's "federally required commencement date" preempted a state statute of repose.  In In re Camp Lejeune, N.C. Water Contamination Litigation, the plaintiffs, who allege that they were injured as a result of exposure to contaminated drinking water at Camp Lejeune, argued that CERCLA Section 9658(a) preempted a state statute of repose that would have barred plaintiffs' claims. 

CERCLA Section 9658 provides that:

In the case of any action brought under State law for personal injury, or property damages, which are caused or contributed to by exposure to any hazardous substance, or pollutant or contaminant, released into the environment from a facility, if the applicable limitations period for such action (as specified in the State statute of limitations or under common law) provides a commencement date which is earlier than the federally required commencement date, such period shall commence at the federally required commencement date in lieu of the date specified in such State statute.

CERCLA goes on to define the "federally required commencement date" with reference to when a plaintiff knew or should have known that his/her injuries were caused by the hazardous substance, pollutant or contaminant. 

The court expressed concern that if it were to accept plaintiffs' argument, it would in effect be allowing CERCLA to resurrect a cause of action that did not exist at the time the case was brought.   The court specifically noted that "although under the Commerce Clause, Congress can supply a cause of action, it is not clear that Congress can breathe new life into an expired cause of action."  That being said, however, the court acknowledged that CERCLA was a remedial statute whose terms should be construed liberally.  As such, the court concluded that notwithstanding its misgivings, Congress had made a policy decision that in situations covered by CERCLA, plaintiffs should have an opportunity to know they have a case before any state limitations period precludes their claims.  Such a limitations period includes a state statute of repose according to the court.