Corporate Environmental Lawyer

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  The draft guidance, Identifying Important Life Stages for Monitoring and Assessing Risks from Exposure to Environmental Contaminants, was prepared by a group of experts convened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  WHO is accepting comments on this draft guidance through January 31, 2012.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.

EPA Issues Final Health Assessment for TCE

By Katherine M. Rahill

On September 28, 2011, EPA issued a final health assessment for trichloroethylene ("TCE") to its Integrated Risk Information System ("IRIS") database.  IRIS is EPA's program through which it evaluates scientific information to determine risks of adverse human health effects as a result of exposure to environmental contaminants.  The risk information developed through the IRIS program is used by EPA to support its regulatory determinations.  The health assessments developed by EPA through this program identify both carcinogenic and non-cancer health effects associated with chemicals.

Environmental Citizen Groups Have No Standing to Challenge Climate Change Impacts of Federal Actions

By Gabrielle Sigel

Two U.S. district courts recently issued separate decisions rejecting environmental groups' challenges to federal actions based on alleged climate change injuries. In both cases, using the same legal test, the courts found that the environmental groups did not have standing to pursue their claims against the federal agencies. This is an important development in climate change litigation, which in the past has addressed standing only in the tort context or regarding claims brought by States, not when private parties were challenging federal agency actions.

Federal Court Rejects EPA Form Consent Order

By Steven M. Siros

On September 12, 2011, a Florida federal district court rejected a proposed consent order that purported to resolve a PRP's CERCLA liability at a site in Florida.  The proposed consent order, which tracked U.S. EPA's model order, required the PRP to reimburse U.S. EPA's past response costs and conduct a remedial design/remedial action at a site in Florida.  Notwithstanding that no objections were filed, the court, on its own initiative, evaluated whether the proposed consent order would provide the settling PRP with sufficient protection from future liability. 

In reaching the conclusion that the consent order did not provide sufficient protection, the court noted that the proposed consent order required the settling PRP to waive its res judicata  and other defenses.  The court also noted that the proposed consent order provided an expansive reservation of rights on the part of the Government to pursue future claims.  In light of the Government's broad reservation of rights and the requirement that the PRP waive its defenses, the court noted that "it is not clear what degree of finality, if any, the consent decree confers upon the [PRP]."  The court further noted that because it could not determine what liability had in fact been resolved by the consent order, it could not grant the settling PRP contribution protection pursuant to Section 113(f)(2) of CERCLA.  Finally, the court also was critical of U.S. EPA's efforts to impose on the court any kind of timeline on subsequent judicial review or to dictate the applicable standard of review to be applied to disputes arising out of the consent order.  We will continue to track this matter to ascertain whether U.S. EPA will modify its model consent order language or seek further review of the district court's order.  For a copy of the September 12, 2011 order, please click here.

Speculative One-In-A-Million Risk Deemed Insufficient For Medical Monitoring Claim

By Steven M. Siros

The U.S. Court of Appeals for the Sixth Circuit recently rejected plaintiffs' efforts to obtain medical monitoring arising out of train derailment that allegedly released dioxin into the environment. In Hirsch et al. v. CSX Transportation, the district court granted summary judgment in favor of CSX Transportation, finding that plaintiffs had not met their burden to show that plaintiffs had been exposed to dioxin in an amount sufficient to cause an increased risk of disease. On appeal, the Sixth Circuit affirmed the district court's ruling, finding that plaintiffs failed to introduce evidence creating a genuine issue as to whether a reasonable physician would order medical monitoring. More specifically, plaintiffs' expert opined that "[o]ne should be afforded the benefit of medical monitoring, if one has sustained a dose equal to or in excess of 50% of [one-in-a-million cancer risk]." In evaluating this expert opinion, the Sixth Circuit found that "Plaintiffs have alleged only a risk that borders on legal insignificance, have failed to produce evidence establishing even this hypothetical risk with any degree of certainty, and have demanded a jury trial based upon their expert's review of this evidence and conclusory statement of the relevant legal standard. In this context, [plaintiff's expert] affidavit amounts to a mere scintilla of evidence." The Sixth Circuit noted that plaintiffs might have survived summary judgment had they obtained medical evidence that they did in fact face a one-in-a-million risk of cancer but that plaintiffs had not done so in this particular case.

New Ceres Environmental Disclosure Report Discussed

By E. Lynn Grayson

A recent publication by Ceres, Disclosing Climate Risks and Opportunities in SEC Filings: A Guide for Corporate Executives, Attorneys and Directors, was part of the materials provided in the September 7, 2011 Changing Standards for Environmental Disclosures webinar co-sponsored by the Environmental Law Institute and Jenner & Block. The report addresses:

• Climate change and the new SEC guidance.
• SEC disclosure expectations and how companies are responding.
• Other key elements of strong corporate disclosure.
• 11-point checklist for developing a climate change strategy and disclosing risks and opportunities in SEC filings.

Jim Coburn, Senior Manager, Investor Program, at Ceres spoke at the September 7th webinar and made participants aware of this recent report. Jim's powerpoint presentation and other program materials are available at http://www.eli.org/index.cfm.