Corporate Environmental Lawyer

Steven Siros Will Be Speaking at ACI’s National Forum On Chemical Products Liability And Environmental Litigation

By Steven M. Siros

Jenner & Block partner Steven Siros will be speaking at ACI's National Forum on Chemical Products Liability and Environmental Litigation on April 26, 2012 in Chicago, Illinois.  Mr. Siros will be discussing efforts to reform the Toxic Substances Control Act and what lessons can be learned from the European Union's REACH regulations.  For further information on the forum, please click here.

New MOU to Provide for Streamlined Review Of Wind Energy Projects In Great Lakes

By Steven M. Siros

On March 30, 2012, the White House announced that it had entered into a Memorandum of Understanding ("MOU") with five states (Illinois, Michigan, Minnesota, New York and Pennsylvania) that is intended to streamline environmental and other reviews for wind energy projects in the Great Lakes. The federal agencies that are part of this MOU are the Department of Energy, U.S. EPA, Department of Defense, Department of the Army, Advisory Council on Historic Preservation, Coast Guard, Fish and Wildlife Service, the Federal Aviation Administration and the National Oceanic and Atmospheric Administration. The MOU requires these federal agencies and the Great Lake States to work collaboratively to create a roadmap for streamlining regulatory reviews of wind energy projects in the Great Lakes. The MOU envisions development of this roadmap within 15 months. Please click here to see a copy of the MOU.

More Funding Sought For Water Infrastructure Improvements

By E. Lynn Grayson

Seven national water and wastewater associations asked House and Senate members to oppose cuts to the FY 13 appropriations for the Drinking Water and Clean Water State Revolving Funds (SRFs) requested by the Obama Administration. The White House budget proposed $359M in reductions next year but even more efforts to further reduce this funding are anticipated. The seven water agencies include: National Association of Clean Water Agencies, Association of Metropolitan Water Agencies, American Water Works Association, Association of State Drinking Water Administrators, Association of Clean Water Administrators, Water Environment Federation and American Public Works Association.

Financial assistance is needed now by wastewater treatment and drinking water providers to update water-related infrastructure. The necessary capital improvements are required to address climate change consequences including both an onslaught of water or an acute shortage.

Pat Mulroy, general manager of the Las Vegas Valley Water District, testified at a Congressional hearing on March 20th that "… the consequences of climate change are happening now in Las Vegas." He addressed the investments required to construct extra intakes to deal with lower water levels in Lake Mead.

A 2009 study by CH2MHill commissioned by the Association of Metropolitan Water Agencies and the National Association of Clean Water Agencies concluded that the collective costs for utilities to manage climate change impacts could be as high as $448B to $944B by 2050. According to CH2MHill, EPA estimates that $500B is needed to upgrade and maintain existing infrastructure.

The letter to Congress seeking funding support for water infrastructure is attached. Additional insight about these issues can be reviewed at http://www.amwa.net/cs/home.

Supreme Court Allows Challenge to EPA Administrative Order

By Katherine M. Rahill

On March 21, 2012, the United States Supreme Court issued a decision that alters what many have long accepted as the rule with respect to administrative compliance orders issued by the U.S. Environmental Protection Agency ("USEPA"). In Sackett v. Environmental Protection Agency, U.S. No. 10-1062, the Supreme Court was tasked with deciding whether a party may bring an action under the Administrative Procedure Act ("APA") to challenge the issuance of a USEPA administrative order under the Clean Water Act ("CWA"). In a unanimous decision, the Supreme Court held that the answer to that question was a resounding "yes."

This case involved the Sacketts who own a residential lot just north of a lake in Bonner County, Idaho and, as part of a plan to construct a house on the lot, filled in part of their lot with soil and rocks in early 2007. At some point following this activity, the Sacketts received an administrative compliance order from USEPA, finding that they had violated the CWA by illegally filling wetlands on their property, ordering them to halt any further construction, and requiring them to restore the property pursuant to a restoration work plan. After receiving the order, the Sacketts requested a hearing to contest the issuance of the order, a request which was denied by USEPA. The Sacketts then filed suit in the U.S. District Court for the District of Idaho to challenge the order under the APA, arguing that USEPA did not have authority under the CWA over their property. The District Court dismissed their claims based on lack of subject matter jurisdiction and that decision was affirmed by the Ninth Circuit. The Sacketts then appealed to the Supreme Court which granted certiorari. 

New Report Links Fracking To Potential Health Issues

By Steven M. Siros

A recent study by the Colorado School of Public Health has linked hydraulic fracturing to elevated levels of petroleum hydrocarbons in the air near drilling sites.  The study, to be published in Science of the Total Environment, identified cancer and non-cancer impacts to residents living within a half-mile of drilling sites in Garfield County, Colorado.  According to a press release issued by the University of Colorado, the researchers apparently found the greatest impact to be during the "relatively short-term, but high emission, well completion period."  The researchers relied upon ambient air sample data from monitoring stations in the vicinity of the drilling sites in reaching their conclusions.  What is unclear, however, is whether the elevated emissions are attributable to releases from the wells themselves or from emissions associated with the well drilling equipment and associated vehicle traffic.

U.S. EPA Considering Limiting Self-Disclosure Incentives

By Steven M. Siros

Under U.S. EPA's current audit policy, companies that self-disclose environmental violations may be entitled to the elimination or reduction of penalties for non-compliance.  However, U.S. EPA recently announced that it is considering limiting the benefits that companies can receive for voluntarily self-disclosing environmental violations. 

According to U.S. EPA, in fiscal year 2011, self-disclosures only resulted in the reduction of 3,000 pounds of pollutants as compared to 1.8 billion pounds in pollutant reduction achieved through other enforcement mechanisms.  U.S. EPA also commented that these self-disclosures are not being made in high-priority enforcement areas.  For example, 54 percent of the disclosures made from fiscal year 1999 through 2011 were made under the Emergency Planning and Community Right to Know Act.   U.S. EPA's recently issued draft National Program Manager Guidance provides that U.S. EPA intends to focus its enforcement priorities on pollution that poses the greatest threats to public health and the environment, such as emissions from coal fired power plants.  The draft guidance questions whether U.S. EPA's self-disclosure program has been effective in reducing high-threat pollutants.

Notwithstanding U.S. EPA's skepticism, it should be noted that the volume of pollution reduced through self-disclosures in 2011 may be an anomaly.  For example, in 2009, 22.9 million pounds of pollutants were reduced through self-disclosures out of a total pollutant reduction of 580 million pounds.  Moreover, even U.S. EPA has acknowledged that it continues to receive large numbers of self-disclosures each year which should enable U.S. EPA to better focus its enforcement priorities on what it deems high-threat pollution. 

 U.S. EPA has not provided specific details concerning what changes it might be contemplating with respect to the audit policy's self-disclosure incentives but we will continue to track this issue. 

Removal Pitfalls: Toxic Tort Case Remanded Back To State Court

By Steven M. Siros

A recent federal court decision out of the Northern District of Ohio illustrates the importance of carefully evaluating when the 30-day deadline for filing a removal petition begins to run.  In Tolloty et al. v. Republic Services, Inc. et al., plaintiffs sued defendants in Ohio state court seeking damages for illnesses allegedly caused by exposure to toxic chemicals from a landfill owned and operated by defendants.  Of the four defendants sued, only one of the defendants was incorporated in Ohio. 

During a deposition of one of the defendant's corporate witnesses, evidence came to light that the Ohio defendant-corporation had not been in existence at the time of plaintiffs' alleged injuries; rather, another corporation with the same name (but incorporated in Delaware) had owned and operated the landfill at that time.  Following the deposition, defendants sent a letter to plaintiffs' counsel asking them to dismiss the Ohio corporation from the litigation; plaintiffs refused.  Within 30 days of receipt of that letter, defendants removed the case to federal court, asserting that the federal court had diversity jurisdiction over the matter since none of the defendants were incorporated or domiciled in Ohio (with the exception of the Ohio defendant-corporation that defendants alleged was fraudulently joined to defeat diversity).  Plaintiffs moved to remand the case back to state court on the basis that more than 30 days had passed since the date that defendants received the transcript of the deposition during which the testimony concerning the Delaware corporation had come to light.  In response, defendants argued that the 30-day clock should not have commenced until such time as plaintiffs refused to dismiss the Ohio defendant-corporation from the litigation.

In considering plaintiffs' request to remand the case, the court noted that a "defendant seeking removal must strictly comply with the timing requirements of 28 U.S.C. §1446(b)."  All ambiguity regarding the scope of §1446(b) should be resolved in favor of remand to the state courts.  Here, defendants' removal petition was filed more than 90 days after defendants received the deposition transcript.  Defendants could point to no operative facts or additional evidence relevant to the issue of fraudulent joinder that became known to them subsequent to the deposition at issue.  The court rejected defendants' argument that until such time as the plaintiffs refused to dismiss the Ohio defendant-corporation, their removal petition was not ripe.  Finally, in what was likely the final nail in defendants' removal coffin, the court noted that even before the deposition at issue, defendants should have been on notice of the underlying facts that they rely upon to make their fraudulent joinder argument.  The court therefore granted plaintiffs' motion to remand the case back to state court.  To see a copy of the opinion, please click here.

Water Scarcity Challenges Headed To Supreme Court

By E. Lynn Grayson

Three petitions have been filed with the U.S. Supreme Court seeking a review of a recent 11^th Circuit Court of Appeals ruling that authorized the U.S. Army Corps of Engineers to allocate additional water from Lake Lanier to meet Atlanta's growing water supply needs. Lake Lanier provides three-fourths of the drinking water for Atlanta. These actions continue the "water wars" litigation between Alabama, Florida and Georgia over the allocation of water resources in this area of the United States.

At issue in these petitions are long term, continuing conflicts over how the Corps manages its projects in the Apalachicola-Chattahoochee-Flint River Basin. In particular, ongoing disputes have focused on the Corps' management of its four Chattahoochee River dams, including the Buford Dam, that creates Lake Lanier.

The petitioners are in agreement that the 11^th Circuit Court of Appeals ruling should be overturned citing its failure to recognize that only Congress has the authority to reallocate water stored in Lake Lanier as well as the fact that this latest decision overlooks existing case law to the contrary, some of which relates to the very subject matter at issue here.

These petitions are a reminder of the growing significance over water resources management in the U.S. today. While many view water resources to be abundant and readily available, water scarcity is a reality for many areas right now and these challenges are increasing with population growth and climate change-related impacts.

The 11^th Circuit ruling in In re MDL-1824 Tri State Water Rights Litigation is available at http://www.ca11.uscourts.gov/opinions/ops/200914657.pdf.

E. Lynn Grayson And Katherine M. Rahill Speak At CBA Corporate Law Department's Committee Meeting

By E. Lynn Grayson and Katherine M. Rahill

E. Lynn Grayson and Katherine M. Rahill will speak at the CBA Corporate Law Department's Committee Meeting this Wednesday, February 22, 2012 at noon. Their presentation titled "2012 Outlook: Corporate Environmental Concerns" will address new and emerging environmental issues important to in-house counsel. These issues will include:

• Lack of Government Resources/Insufficient Funding
• Superfund/UAOs
• Environmental Disclosures
• Corporate Environmental Responsibility
• Water Scarcity
• Memoranda of Understanding (MOUs)
• Financial Assurance
• Soil Vapor Intrusion
• EPA Toxicological Reviews
• Improved/New Technology

Lynn and Katie are partners in the Environmental and Workplace Health & Safety Law Practice and may be reached at lgrayson@jenner.com and krahill@jenner.com. More information is available at www.jenner.com.

New MOU For EPA And DoD

By E. Lynn Grayson

EPA and DoD have entered into a new Memorandum of Understanding (MOU) to advance the use of innovative technologies and their mutual interests in sustainability. This MOU is entered into between EPA through its Office of Research and Development, and the Department of Defense through its Office of the Deputy Under Secretary of Defense for Installations and Environment, to establish relations between the two institutions regarding collaboration on their mutual goals.

The Office of Research and Development (ORD) is the scientific research arm of EPA, whose leading-edge research helps provide the solid underpinning of science and technology for the EPA. The work at ORD laboratories, research centers, and offices across the country helps improve the quality of air, water, soil, and the way these resources are used.

The Office of the Deputy Under Secretary of Defense for Installations and Environment ((DUSD-I&E)) is the principal advisor to the Secretary of Defense on matters related to Department of Defense (DoD) installation capabilities, programs, and budgets. Responsibilities include installation-energy programs and policy, environmental management, safety and occupational health, environmental restoration at active and closing bases, conservation of natural and cultural resources, pollution prevention, and environmental research technology.

Subject to mutual consent and availability of funding, EPA and DoD intend to carry out joint activities to advance the development and/or demonstration of new applications and technologies that can be used to achieve mutual sustainability goals. These applications and technologies will use both new and existing data about health and the environment, as well as new data developed within the scope of this MOU.

EPA and DoD intend to cooperate in research, development, and demonstration of technologies that can be used to achieve mutual goals. Joint EPA-DoD activities are expected to be undertaken subject to available funding and resources within each agency. Each party may contribute funding and in-kind resources, depending on the collaborative project, which is consistent with the goals, missions, and programmatic requirements of the party.

The MOU is effective for five (5) years until 2017.