Corporate Environmental Lawyer

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 Chemicals Proposed for Addition to California’s Proposition 65 List

By Katherine M. Rahill

In December and January, the California Environmental Protection Agency's Office of Environmental Health Hazard Assessment ("OEHHA") announced its intent to add seven new chemicals to the Proposition 65 chemicals list:

• Kresoxim-methyl
• Tetraconazole
• Methyl isopropyl ketone
• Benzophenone
• Coconut oil diethanolamine condensate
• Diethanolamine
• 2-Methylimidazole

 The Safe Drinking Water and Toxic Enforcement Act of 1986, otherwise known as Proposition 65, requires the State of California to publish a list of chemicals determined by the State to cause cancer or reproductive toxicity.  There are four mechanisms by which a chemical can be determined to cause cancer or reproductive toxicity sufficient to require listing: (1) either the Carcinogen Identification Committee or the Developmental and Reproductive Toxicant Identification Committee, independent committees of scientists and health professionals that are part of OEHHA's Science Advisory Board, make a determination that there is sufficient evidence that the chemical causes cancer or reproductive impacts; (2) an authoritative body such as the International Agency for Research on Cancer, the National Toxicology Program, or the U.S. Environmental Protection Agency identifies the chemical as causing cancer or reproductive impacts; (3) a state or federal agency requires the chemical to be labeled as causing cancer or reproductive impacts; or (4) the chemical meets certain criteria and is identified in the either of two provisions of the California Labor Code as causing cancer or reproductive impacts.  The listing of a chemical generally imposes two obligations on businesses that use that chemical: (1) businesses must provide a warning before exposing anyone to a chemical on the Proposition 65 chemicals list; and (2) businesses must prevent the discharge of listed chemicals into sources of drinking water. 

 Of the seven chemicals for which OEHHA has published Notices of Intent to list in the last two months, five of the chemicals are being listed through the California Labor Code mechanism, four chemicals as a result of findings that the chemicals are carcinogenic (Benzophenone, Coconut oil diethanolamine condensate, Diethanolamine, and 2-Methylimidazole) and one chemical for evidence of developmental toxicity (Methyl isopropyl ketone).  The other two chemicals are proposed for listing through the authoritative body mechanism as a result of U.S. EPA studies concluding they are capable of causing cancer (Kresoxim-methyl and Tetraconazole).  A comment period was provided by OEHHA for the listing of these chemicals.  Once the comment periods have ended (some of which have expired already), OEHHA will then make a final determination and publish a revised Proposition 65 list, no sooner than 60 days after the publication of the Notices of Intent. 

In addition to the proposed addition of these seven chemicals to the Proposition 65 chemicals list, OEHHA also announced the selection of two chemicals (deltamethrin and xylene) for consideration by the Developmental and Reproductive Toxicant Identification Committee.  The Committee will undertake a review of existing scientific evidence regarding the potential for these two chemicals to cause reproductive impacts.  With the announcement of the selection of these chemicals, OEHHA requested the public provide information relevant to the Committee's review.

 OEHHA's Notices of Intent to list new chemicals can be found by clicking here and Requests for Information can be found by clicking here.

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.

World Health Organization (WHO) Issues Life Stage Guidance for Risk Assessment

By E. Lynn Grayson

According to WHO, a significant challenge exists with monitoring and assessing individual and population level exposure and risk to environmental chemicals associated with how to consider age and life-stage related changes in behavior and physiology.  Age and life-stage related differences will determine the critical windows of susceptibility as well as the appropriate distribution of exposure factors required to address specific exposure scenarios.  Age and life-stage differences in how individuals interact with the environmental may be a major determinant for identifying those most vulnerable to risks from particular exposures to environmental contaminants.

WHO, through its International Program on Chemical Safety, has developed guidance on these issues and specifically how to systematically identify critical life stages for use in exposure and risk assessment.  The draft guidance, Identifying Important Life Stages for Monitoring and Assessing Risks from Exposure to Environmental Contaminants, was prepared by a group of experts convened by WHO.  WHO is accepting comments on this draft guidance through January 31, 2012.

WHO is the directing and coordinating authority for health within the United Nations system.  It is responsible for providing leadership on global health matters, shaping the health research agenda, setting norms and standards, articulating evidence-based policy options, providing technical support to countries and monitoring and assessing health trends.

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 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.