Corporate Environmental Lawyer

Pesticide Use Data Now Available From USGS

By E. Lynn Grayson

The USGS recently made available detailed maps identifying annual usage of 459 pesticides throughout the U.S. The Pesticide National Synthesis Project manages pesticide data from 1992-2009 and provides specific statistics associated with pesticide use per crop and within each county.

The maps were developed for use in national and regional water-quality assessments. The USGS data was collected from surveys of farm operations and USDA statistics on annual harvest-crop acreage. This information was used to calculate use rates for each crop per year.

These maps show interesting information about the nature of pesticide use around the country. Data includes insight into the quantity of pesticide use per U.S. county as well as the specific crop growing in the same area.

The usage maps for all 459 pesticides can be accessed at http://water.usgs.gov/nawqa/pnsp/usage/maps/compound_listing.php.

EPA Promotes "Soil Gas Safe" Approach to Potential Vapor Intrusion Concerns

By E. Lynn Grayson

EPA recently announced at the Brownfields 2013 conference that the Agency was in favor of preemptive vapor intrusion control systems when constructing new buildings, particularly at brownfield sites. A "soil gas safe" community is one where all buildings use devices that minimize or prevent vapor intrusion, according to EPA's Henry Schuver.

Many brownfield projects face chemical vapor intrusion (VI) concerns. Controls for the prevention of soil gas intrusion into indoor air are a relatively low-cost and quick addition to most new developments and bring value to the buildings involved, according to Roux Associates. EPA supports a "soil gas safe" approach that highlights the benefits of preventing all soil gas/vapor intrusion, particularly for cases where there is some potential for chemical VI to be present. 

The Agency's advocacy of preemptive mitigation is a positive step in promoting redevelopment of impacted sites and other brownfield properties. If completed as part of the routine construction process, mitigative measures, such as aerated permeable floors, are protective of human health and may minimize any perceived stigma associated with brownfield redevelopment projects.

High Court Refuses to Take Up Kivalina Climate Suit

By Keri L. Holleb Hotaling

On May 20, 2013, the United States Supreme Court denied the Alaska town of Kivalina’s petition for writ of certiorari in its public nuisance lawsuit against Exxon Mobil Corp. and other energy companies. Kivalina contended that the energy companies were injuring the small Eskimo village by causing global warming and a commensurate sea level rise, and, as a result, inhabitants were forced to leave and relocate further inland. Because the Supreme Court has opted not to hear the case, the Ninth Circuit’s ruling in favor of the energy companies will stand. The Ninth Circuit largely followed the reasoning of the Supreme Court in American Electric Power Co., Inc. v. Connecticut, ---U.S.---, 131 S. Ct. 2527, 180 L. Ed. 2d 435 (2011), in affirming the dismissal of the action by the district court and finding that the Clean Air Act (“CAA”) displaced Kivalina’s claim for $400 million in damages to fund a relocation project. (See “Ninth Circuit Affirms Dismissal of Federal Common Law Nuisance Claim for Global Warming.”) Kivalina urged the Supreme Court in its February petition that the case be controlled by Exxon Shipping Co. v. Baker, 554 U.S. 471 (2008), which held that the Clean Water Act, a statute like the CAA, did not displace a federal common law damages claim. The case is Native Village of Kivalina, et al. v. Exxon Mobil Corp., et al., Case Number 12-1072, U.S. Supreme Court.

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).

 

Indiana Federal Court Rules That Citizen Suit Seeking To Compel Remediation On The Basis Of Historical RCRA Violations Was Precluded

By Steven M. Siros

A recent decision out of the Northern District of Indiana found that a citizen suit brought under RCRA Section 7002(a)(1)(A) was unavailable for contamination that was caused by alleged historical violations of RCRA. In Browning v. FlexSteel Industries, Inc. (N.D. Ind. 2013), plaintiffs brought a RCRA citizen suit under RCRA Section 7002(a)(1)(A) which allows private parties to sue any person who is alleged to be in violation of RCRA to force compliance (or in this case, remediation of the contamination). Plaintiffs also sued under RCRA Section 7002(a)(1)(B) which allows private parties to sue any person who is, or has contributed to contamination that presents an imminent and substantial endangerment to human health or the environment.

Although Plaintiffs acknowledged that they could not bring a RCRA Section 7002(a)(1)(A) claim for "violations that are 'wholly past'", plaintiffs argued that the majority of district courts to have considered this issue had found that citizen suits should be allowed under RCRA Section 7002(a)(1)(A) to address the continuing effects of existing contamination that were caused by past violations of RCRA. The court acknowledged this "majority rule" but noted that neither the Seventh Circuit nor any other appellate court had yet adopted this "majority rule."  

The court therefore turned for guidance to a United States Supreme Court case that had interpreted similar language in the Clean Water Act ("CWA"). In Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc.(S. Ct. 1987), the United States Supreme Court held that CWA citizen suit complaints were not available to address wholly past violations of the CWA. The court also considered a recent decision out of the Northern District of Illinois which rejected similar arguments that the continuing environmental effects of wholly past conduct could satisfy the RCRA Section 7002(a)(1)(A) requirement that there be a "continuing or intermittent violation." See Forest Park Nat'l Bank & Trust v. Ditchfield, (N.D. Ill. 2012).

Adopting the reasoning employed by both the Gwaltney and Ditchfield courts, the Indiana federal court held that RCRA Section 7002(a)(1)(A) was limited to current, ongoing RCRA violations and could not be relied upon to address contamination allegedly caused by historical RCRA violations. The court did note that plaintiffs were not without a remedy in that they could still pursue their RCRA "imminent and substantial" endangerment claims under Section 7002(a)(1)(B).

EPA Is Seeking Public Comments On Revised Waste Analysis Guidance

By Allison  A. Torrence

The United States Environmental Protection Agency ("EPA") is seeking public comments on a revision to "Waste Analysis at Facilities That Generate, Treat, Store, and Dispose of Hazardous Wastes: A Guidance Manual." The guidance manual was last updated in 1994. The current version of the guidance manual (dated January 2013) is available here.

The manual provides guidance on how to develop and implement a Waste Analysis Plan in accordance with the Resource Conservation and Recovery Act ("RCRA"). The primary audiences for the manual are hazardous waste generators and owners/operators of treatment, storage, and disposal facilities ("TSDFs").

EPA has identified the following areas as in particular need of clarification in the revised guidance manual:

• Design of characterization studies;
• Recharacterization frequency;
• How to address issues of waste variability;
• Establishing and employing data quality objectives;
• Selection of indicator parameters to reduce testing costs;
• Measurement uncertainty; and
• Using statistical concepts to guide the characterization process.  

The EPA is inviting operating TSDFs, permit writers, trade associations, and environmental groups to provide comments on the updated guidance. EPA will accept comments through April 30, 2013. More information is available on the EPA website.

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.

Illinois Working On Development Of Fracking Regulations

By Steven M. Siros

Although leases have been signed on thousands of acres of land in southern Illinois, oil and gas companies have yet to aggressively initiate hydraulic fracturing in Illinois in large part because of the absence of laws regulating that practice. That may soon change, however, in light of efforts underway in Springfield to craft comprehensive fracking rules.

The Illinois Hydraulic Fracturing Act (H.B. 25), which was introduced in the the Illinois House of Representatives on February 21, 2013, would grant the Illinois Department of Natural Resources the authority to promulgate rules and issue permits with respect to hydraulic fracturing activities.  The proposed bill would further require the disclosure of chemicals used in the fracking process, impose well construction standards to minimize source water contamination, establish setbacks with regard to residential and nearby water sources, and provide public input opportunities when fracking permits are issued.  

The bill represents the collaborative efforts of industry, environmental groups and the Illinois Attorney General. We will continue to track this bill as it makes its way through the Illinois legislature.

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.