On March 7, 2016, the Ninth Circuit granted Boeing’s petition seeking to appeal the remand to state court of an environmental class action lawsuit alleging the improper disposal of hazardous chemicals into soil and groundwater at a site in Auburn, Washington. This would be the second time that Boeing has appealed an order remanding the case back to state court. In the first go-around, the district court granted plaintiffs’ motion to remand, applying the single-event exception to removal under the Class Action Fairness Act of 2005 (CAFA). Boeing appealed, and the Ninth Circuit concluded that the single-event exception to CAFA removal did not apply and directed the district court to examine plaintiffs’ separate argument in support of remand based on CAFA’s local-controversy exception. Under CAFA’s local-controversy exception, federal courts should decline to exercise jurisdiction over a class where at least two-thirds of the class are citizens of the state in which the complaint is filed and at least one defendant is a citizen of the filing state whose alleged conduct forms a significant basis of the asserted claims and from whom the class seeks significant relief.
Jenner & Block Webinar: The Top Environmental, Health and Safety Issues for 2016 - What You Need to Know
On Tuesday, February 23rd, from 12:00– 1:15 pm CT, Jenner & Block Partners Lynn Grayson and Steven Siros will present a CLE webinar on The Top Environmental, Health and Safety Issues for 2016 - What You Need to Know. The webinar will provide an overview of key environmental, health and safety issues in 2016 including the following topics:
- Issues relating to the Corps’ jurisdiction under the Clean Water Act;
- Fallout under the Safe Drinking Water Act after Flint;
- U.S. EPA’s Clean Power Plan regulations, UNFCCC COP 21, and the potential regulation of aircraft GHG emissions;
- Status of TSCA reform efforts;
- Litigation relating to GMOs under FIFRA;
- RCRA waste regulation amendments;
- OSHA penalty updates;
- U.S. EPA challenges;
- Water scarcity and sustainability; and
- Technological innovation and its impact on environmental practitioners.
To register for this free Webinar click here.
A California appellate court recently affirmed a lower court decision that had concluded that an insured’s failure to obtain consent from its excess insurer barred it from recovering insurance proceeds from that insurer. In 2001, a lawsuit was filed by residents of a Missouri town seeking damages against the insured relating to alleged contamination from a lead and cadmium smelting operation. Zurich Insurance Company was the primary liability insurer and had agreed to provide a defense of the action. Fidelity & Casualty of New York (“F&C”) was an excess carrier and had received notice of the underlying litigation. The matter was resolved during a mediation and the insured agreed to settle the residents' claims for $55 million. However, F&C was not notified of the settlement until a month later.
On Wednesday, February 10, 2015 from 1:00 p.m.-2:30 p.m. (Central), Partner Steven Siros will be presenting at a DRI webinar titled “Relying on Chemical Fingerprinting as a Line of Evidence in Allocation Proceedings”. The webinar will provide insights on the technical aspects of chemical fingerprinting for a variety of contaminants, including PCBs, dioxins, and chlorinated solvents. The webinar will also provide an overview of how courts have treated chemical fingerprinting from an expert witness standpoint as well as a case study demonstrating how this technique can be used to delineate co-mingled plumes. Michael Bock, with Ramboll Environ will also be presenting at the webinar. Here is a link to the webinar brochure.
Partner Allison Torrence discusses mobile-source emissions and the Clean Air Act in a new video in Jenner & Block’s “Insights” series. Allison focuses her discussion on enforcement and the EPA’s increasingly stringent standards. She also examines EPA actions that recently have been in the news regarding “defeat devices” that turn on vehicle emission controls during testing in EPA labs and turn off the controls when the vehicles are on the road.
Yesterday evening, the Department of Health and Human Services designated Dr. Nicole Lurie, an agency assistant secretary, to lead the federal government’s response to the elevated lead levels allegedly found in the drinking water being provided by the City of Flint, Michigan, to its residents. This designation came on the heels of a meeting between Flint’s mayor and Valerie Jarrett in Washington, D.C. The federal government has elected to play a significant role in addressing this crisis, with President Obama signing an emergency declaration on Saturday which provided Flint with access to up to $5 million in federal funds. The crisis began in 2014 when Flint stopped getting water from Detroit and began obtaining its drinking water from the Flint River in an effort to lower costs.
In 2015, the United States Court of Appeals for the 9th Circuit vacated U.S. EPA’s registration of the insecticide sulfoxaflor, finding that U.S. EPA lacked adequate data to ensure that its registration would not harm non-target species, and more specifically, bees. Following the 9th Circuit’s decision in September 2015, U.S. EPA reversed its position on two other pesticide registrations. In October 2015, U.S. EPA indicated that it planned to ban the agricultural use of chlorpyrifos notwithstanding U.S. EPA's previously stated intention to work with industry to mitigate the risks as opposed to an outright ban. In November 2015, U.S. EPA sought to voluntarily vacate its prior registration of Enlist Duo on the basis that U.S. EPA had obtained new data suggesting that the combined toxicity of its two ingredients (glyphosate and 2,4-D) was higher than originally believed. U.S. EPA was facing litigation in the 9th Circuit with respect to both of these pesticides which likely played a role in those decisions. In addition, U.S. EPA’s anticipated decision with respect to the reregistration of glyphosate has been delayed on multiple occasions and is now expected sometime in 2016.
These actions are all suggestive that U.S. EPA has elected to adopt a more stringent approach with respect to its risk reviews of pesticides under the Federal Insecticide, Fungicide and Rodentcide Act (FIFRA) and the Endangered Species Act (ESA). Such an approach is likely to result in significant delays in getting pesticide products registered and to the market. We will continue to follow these issues as we await U.S. EPA’s glyphosate reregistration decision which is likely to be the next significant U.S. EPA action in the FIFRA arena.
The United States Environmental Protection Agency ("U.S. EPA") recently announced its 2015 enforcement statistics, noting that for fiscal year 2015, U.S. EPA initiated enforcement actions resulted in $404 million in penalties and fines. In addition, companies were required to invest more than $7 billion to control pollution and remediate contaminated sites; convictions for environmental crimes resulted in 129 years of combined incarceration for convicted defendants; and there was a total of $39 million committed to environmental mitigation projects that benefited communities throughout the United States.
The largest single penalty was the result of a Clean Air Act settlement with two automobile manufacturers that resulted in a $100 million penalty, forfeiture of emissions credits and more than $50 million being invested in pollution control and abatement measures. U.S. EPA's 2015 enforcement numbers were up from 2014 ($100 million in fines and penalties collected in 2014).
Please click here to go to U.S. EPA's 2015 enforcement statistics website.
World leaders and delegates from over 150 nations have converged in Paris, France for the United Nations Climate Change Conference (also referred to as COP21). The conference, which is scheduled to run from November 30th through December 11th, has as its goal achieving a legally binding agreement intended to limit greenhouse gas emissions in order to ensure that global average temperatures do not increase in excess of two degrees Celsius over pre-industrial global temperatures.
Leaders of both the United States and China addressed the conference attendees. President Obama noted that recent economic growth in the United States has come despite a lack of growth in carbon emissions, proving that climate advancements need not come at the expense of the economy or individual livelihoods. Chinese President Xi Jinping struck a somewhat different tone, saying that the conference "is not a finish line, but a new starting point" and that "any agreement must take into account the differences among nations” and that “countries should be allowed to seek their own solutions, according to their national interest."
Prior to the conference, countries had voluntarily submitted climate action plans referred to as Intended Nationally Determined Contributions (“INDCs”) that are intended to form the basis for any agreement that might be reached over the next two weeks. According to the United Nations Secretary General, more than 180 countries have submitted their INDCs which covers almost 100% of global greenhouse gas emissions. However, in order to reach the above-referenced goal of less than a two degree temperature increase, the Secretary General noted that developed countries would need to be prepared to expend $100 billion dollars by 2020. What if anything the developing countries would need to contribute is much more nebulous but is a topic that is certain to be discussed at the conference.
We will continue to blog on COP21 over the next several weeks while the conference is in session.
Lynn Grayson and Steven Siros Publish Article on U.S. Legal and Regulatory Developments in Nanotechnology
Lynn Grayson and Steven Siros have published an article in the most recent issue of DRI’s Toxic Tort and Environmental Law Newsletter titled Nanotechnology: U.S. Legal and Regulatory Developments. In the article, Ms. Grayson and Mr. Siros discuss how nanotechnology affects every sector of the U.S. economy and impacts our lives in a myriad of ways through the 1,600 nanotechnology-based consumer goods and products we use on a daily basis. The article provides an overview of how nanotechnology is defined, insights on the regulatory framework and recent developments, possible concerns about nanomaterial use, and risk management considerations for U.S. businesses utilizing nanotechnology.
The full article is available here.
A recent study conducted by the University of Paris-Saclay identified the presence of carbon nanotubes in children’s lungs in France. Researchers examined 69 randomly selected lung fluid samples and found evidence of carbon nanotubes in all 69 of the samples. The samples were collected from the lungs of children between the ages of 2 and 17 years suffering from severe asthma. Carbon nanotubes are often used in the manufacture of computers, clothing and healthcare technology. Carbon nanotubes are also found in automobile exhaust. Although the source of the nanotubes identified in the children’s lung fluid was not identified, the study found that the particulate matter was mostly composed of anthropogenic multi-walled carbon nanotubes ranging from 10 to 60 nanometers in diameter and several hundred nanometers long.
According to the study authors, this study was the first study demonstrating that carbon nanotubes from anthropogenic sources reach human lung cells. However, others have been critical of the study, noting that previous studies have not found evidence of carbon nanotubes accumulating in the lungs. Please click here to view the study.
A recent decision by the Seventh Circuit Court of Appeals may significantly lower the causation bar for plaintiffs in toxic tort cases. In the case C.W. & E.W. v. Textron, Inc., the Seventh Circuit was called on to evaluate a district court decision that excluded plaintiffs' experts for failing to meet the admissibility requirements of Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc. The Seventh Circuit's analysis of the district court's decision was relatively straightforward and the Seventh Circuit acknowledged that the district court had carefully considered the methodology employed by plaintiffs' experts. The Seventh Circuit concluded that the district court had properly exercised its gatekeeper role under Daubert in concluding that there simply was too great an analytical gap between the data and the expert opinion being offered such that the opinion amounted to nothing more than the ipse dixit of the expert.
On August 30, 2015, a federal district court judge in Texas granted a developer’s motion for summary judgment against the United States and ordered the Government to reimburse the developer’s legal fees incurred in defending the Government’s lawsuit as a result of conduct that the court characterized as being “oppressive and dishonest.” According to the district court, in 2004, the developer began developing several tracts of land located in north Houston. In 2007, an investigator with the United States Environmental Protection Agency (U.S. EPA) advised the developer to stop developing its property because the property contained wetlands that U.S. EPA contended constituted jurisdictional waters of the United States. In May 2010, the United States sued the developer for violations of the Clean Water Act (CWA), and more specifically, for discharging fill into what the United States contended were waters of the United States without a CWA permit.
The court rejected the United States’ claims that the developer filled wetlands constituting jurisdictional waters of the United States finding instead that:
“Mill Creek and Dry Creek, as the latter’s name suggests, are little more than drainage ditches that conduct water only after a rain—a country boy could easily jump them. The same is true for the three tributaries. They are not permanent waters. The government’s characterization as seasonal is generous and accurate only insofar as they are wet in the Spring and Fall after is has rained. They are wetlands only in the same way that the entire area is coastal prairie.”
The court went on to state that “[t]he seasonal connection of some wetlands to seasonal tributaries that feed navigable waters is too tenuous a connection to give the government jurisdiction under the [CWA].”
On August 5, 2015, contractors working for U.S. EPA at the Gold King Mine near Durango, Colorado, triggered the release of more than 3,000,000 gallons of highly contaminated water into the Animas river. More specifically, U.S. EPA contractors were in the process of conducting an investigation of the Gold King Mine to assess on-going water releases from the mine. While excavating materials around the entrance to the mine, loose material gave way allowing water from the closed mine to spill into the nearby river. As of Sunday afternoon, the mine continued to discharge approximately 500 gallons per minute although U.S. EPA notes that the polluted water is being contained and treated in two ponds near the site.
The release has resulted in a visible plume that extends almost 80 miles down the Animas River. According to preliminary water quality tests, arsenic levels in the Animas River are more than 300 times normal levels and lead had peaked at 3,500 times normal levels. U.S. EPA is working cooperatively with Region 6 and Region 9 and the states of Colorado, New Mexico, Utah and the Southern Ute tribe to address the contamination in the Animas river. The Navajo Nation, however, has declared an emergency and shut down its drinking water systems that rely upon water from the Animus river. Navajo President Russell Begaye has already indicated that the Navajo Nation intends to sue U.S. EPA for damage to the Navajo Nation’s natural resources. In addition, Colorado Governor John Hickenlooper has declared a disaster emergency for the Animas river which makes $500,000 from Colorado's Disaster Emergency Fund eligible to be used to remediate the contamination.
It is unknown at this time what long-term impacts this release might have on the Animas river which ultimately discharges into the San Juan and Colorado rivers. U.S. EPA has acknowledged that metals are likely to settle down to the bottom of the river bed and long-term monitoring will be required.
Partners E. Lynn Grayson and Steven M. Siros have published a new article titled “Nanotechnology: U.S. Regulatory Framework and Legal Risk Management” in the Westlaw Journal of Toxic Torts addressing some of the legal and technical challenges associated with nanotechnology. While nanotechnology offers the opportunity for tremendous scientific advances in industrial, commercial, and consumer products, and has been referred to by some as the second coming of the Industrial Revolution, there has been growing concern and associated regulatory scrutiny with respect to how nanotechnology interacts with human health and the environment. The article provides an overview of how nanotechnology is defined, key regulatory initiatives, public and private partnerships assessing potential concerns, and risk management considerations.
In honor of the fifth anniversary of our entry into the blogosphere, we are excited to announce a major revamp of the Corporate Environmental Lawyer’s design. In addition to the blog’s sophisticated new look, our readers will enjoy:
- Mobile and tablet responsive technology
- A trending-categories cloud list
- Easy-to-use social sharing buttons
Streamlined navigation menus
- Access to all five years of posts
In the five years since our Environmental and Workplace Health & Safety (EHS) practice created the Corporate Environmental Lawyer, we have written more than 500 posts, provided critical updates and insights on issues across the EHS legal sectors, and been ranked among LexisNexis’s top 50 blogs. As we wish to continue to grow the blog and provide our readers with the information they want to know, Corporate Environmental Lawyer editors, Steven M. Siros and Genevieve J. Essig, encourage you to participate by suggesting new topics. We look forward to continuing to provide content covering the issues that are driving changes in environmental law.
According to recently released data from the National Oceanic and Atmospheric Administration (NOAA), the monthly average carbon dioxide concentration in the atmosphere now exceeds 400 parts per million (ppm). Although this isn't the first time that the threshold had been exceeded, with observational sites in the Arctic observing exceedances in the spring of 2012 and at NOAA's Mauna Loa Observatory in 2013, this is the first time that the average has exceeded 400 parts per million on a global basis. Carbon dioxide emissions are expected to stay above this threshold through at least May, when atmospheric concentrations of carbon dioxide typically peak.
Although the consequences of climate change are not expected to change dramatically now that carbon dioxide levels exceed 400 ppm, according to Dr. Pieter Tans, who leads NOAA's Carbon Cycle Greenhouse Gases Group, passing 400 ppm is a significant milestone as it illustrates how much human activity has contributed to carbon dioxide levels. The fact that this symbolic threshold has now been eclipsed may also bring additional pressure to bear on world leaders when they get together at the 2015 United Nations Climate Change Conference in Paris in December 2015.
Please click here to go to NOAA's Earth System Research Laboratory's website.
At long last, with a 15-5 bipartisan vote, a Senate bill that would amend the Toxic Substances Control Act (TSCA) moved out of the Senate's Environment and Public Works Committee. Notwithstanding continuing objections from Senator Boxer, the bill that came out of the committee contained a host of changes from the original bill that were intended to address concerns that had been raised by democrats, environmental and public health advocates and U.S. EPA.
Several of these key changes include:
In a speech today at Georgetown University, President Obama unveiled his Climate Action Plan which focuses, at least in part, on promulgating greenhouse gas (GHG) rules for new and existing power plants. More specifically, the President directed U.S. EPA to promulgate regulations that limit GHG emissions at existing power plants. The President also directed U.S. EPA to re-propose New Source Performance Standards (NSPS) for newly constructed power plants. U.S. EPA had previously issued proposed NSPS rules in April 2012; however, U.S. EPA had missed its one-year deadline for issuing a final NSPS for new coal- and natural gas-fired utilities.
Other key elements of the President's Climate Action Plan include:
- An end to public financing of coal-fired power plants abroad that do not include carbon capture and sequestration technology, except in developing nations where no viable alternatives exists;
- Setting a target for the Department of Interior to double renewable energy production on public lands (from 10 gigawatts to 20 gigawatts) by 2020;
- Directing federal agencies to streamline the siting, permitting and review process for electricity transmission projects;
- Directing U.S. EPA and the Department of Transportation to work on a second round of heavy-duty vehicle emission limits for post-2018 model years;
- Making available up to $8 billion in loan guarantees for advanced fossil energy projects that are intended to avoid, reduce, or sequester anthropogenic emissions of GHGs;
- Directing federal agencies to ensure that new roads and other taxpayer-funded projects are built to withstand extreme weather events and anticipated rising sea levels;
- Establishing a new energy efficiency standards goal for consumer products;
- Efforts to craft a free trade agreement on environmental goods and services that will seek to lower tariffs and other market barriers;
- Initiatives to curb emissions of hydrofluorocarbons and methane; and
- Directing agencies to focus on the impacts of climate change in key sectors, including health, transportation, food supplies, oceans and coastal communities and implement strategies to mitigate the impact of climate change on these key sectors.
Both sides of the debate are already weighing in with environmental groups praising the President's Climate Action Plan and industry groups arguing that the plan will hike energy costs and harm the poor while having little effect on GHG emissions globally. During his speech, the President also commented on the Keystone pipeline, noting that "our national interest will only be served if this project does not significantly exacerbate the problem of carbon polllution" and "that the net effects of the pipeline's impact on our climate will be absolutely critical to determining whether this project is allowed to go forward."
On November 21, 2012, the Department of Transportation's Pipeline and Hazardous Materials Safety Administration ("PHMSA") issued a notice seeking comments as part of its ongoing efforts to improve its collection, analysis, reporting and use of data relating to accidents and incidents involving the transportation of hazardous substances. Under existing hazardous materials regulations, any person (i) in physical possession of a hazardous material (ii) at the time that an incident occurs (i.e., release or discovery of undeclared shipment) (iii) during transportation, is required to submit a written incident report to PHMSA as further described in 40 CFR 171.16. Currently, with limited exceptions, shippers and consignees are exempt from this reporting obligation. The PHMSA is seeking comments on whether this reporting obligation should be expanded to include shippers and consignees of hazardous materials. Comments must be submitted by December 28, 2012. For further information, please click here.
The United States Environmental Protection Agency ("U.S. EPA") is expected to issue a direct final rule imposing significant new use rules ("SNURs") on 107 chemicals pursuant to Section 5(e) of the Toxic Substances Control Act ("TSCA"). The direct final rule is scheduled to take effect November 20, 2012. Although U.S. EPA has already allowed these 107 chemicals to go into production, the chemicals are subject to protective measures either through a TSCA 5(e) consent orders or as part of the pre-manufacturing notices filed by the manufacturers. Any manufacture or use of one of these 107 chemicals that does not adopt these pre-existing protective measures would be considered a "new use" which would require that advance manufacture or use notification be provided to U.S. EPA. To see a copy of the Federal Register notice, please click here.
This most recent U.S. EPA action is consistent with U.S. EPA's ongoing efforts to more aggressively exercise its TSCA authority. Notwithstanding that TSCA reform seems to be stalled in Congress, in 2012, U.S. EPA has already issued SNURs for over 250 chemicals (including the 107 chemicals that are the subject of this direct final rule) and is aggressively moving forward with its TSCA Work Plan chemical assessments.
Steven Siros Will Be Speaking at ACI’s National Forum On Chemical Products Liability And Environmental Litigation
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.
On December 14, 2011, a group of investors that purchased trading privileges on the Chicago Climate Exchange ("CCX") sued the CCX and its founders, alleging fraud and violations of Illinois' Consumer Fraud and Deceptive Business Practices Act. The lawsuit, which was filed in Illinois state court, contends that defendants falsely represented that only a limited number of trading privileges would be sold and once these privileges were sold, the privileges would be freely transferable. The CCX was acquired by Intercontinental Exchange ("ICE") in April 2010. In August 2011, ICE announced that due to low trading volume on the CCX (attributable to the failure to pass federal cap and trade legislation), the exchange would operate through first quarter 2012 and then shut down. In their lawsuit, plaintiffs allege that they would not have purchased trading privileges on the CCX had they been aware that the privileges would ultimately not be marketable. To see a copy of the complaint, please click here.
Criminal Charges Filed For Sale of Fake Renewal Energy Credits; NOVs Issued to Companies that Purchased Fake Credits
On October 3, 2011, Rodney Hailey, the Chief Executive Officer of Clean Green Fuels, LLC was charged with wire fraud, money laundering, and Clean Air Act violations for allegedly selling $9 million in fake renewable energy credits. According to the complaint, Hailey is alleged to have sold 32 million renewable energy identification numbers representing approximately 22 million gallons of biodiesel fuel. The credits were purchased by oil companies to demonstrate compliance with a provision in the Energy Independence and Security Act that requires these companies to either produce a specific quantity of renewable fuel or purchase renewable energy credits.
On November 7, 2011, U.S. EPA issued notices of violation to 24 companies that had purchased these invalid credits, noting that the use by these companies of invalid credits to demonstrate compliance was still a violation "regardless of that person's good faith that the [credits] were valid at the time they were acquired." U.S. EPA has ordered these 24 companies to submit revised corrected compliance reports within 14 days or face potential penalties of $37,500 per day. Please click here to go to U.S. EPA's website for more information on these notice of violations.
According to U.S. EPA, Sherwin-Williams agreed to pay a $570,000 civil penalty to settle alleged RCRA violations at a paint manufacturing facility in Baltimore. These alleged RCRA violations included the storage of hazardous waste in excess of 90 days, the failure to date and label hazardous waste containers, the failure to close hazardous waste containers, the failure to comply with inspection requirements for hazardous waste containers, and the failure to respond immediately to a release at the facility. The magnitude of the penalty demonstrates how important it is for companies to ensure that their operations are in full compliance with all applicable RCRA rules and regulations. Periodic internal reviews and audits are excellent ways to ensure continued RCRA compliance.