Corporate Environmental Lawyer

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.

Compliance With FIFRA Regulations Provides Defense From Product Liability Lawsuit

By Steven M. Siros

An Indiana appellate court recently affirmed summary judgment on behalf of The Dow Chemical Company and Dow AgroSciences, LLC (collectively "Dow"), in a personal injury lawsuit premised on alleged design defect and failure to warn claims. See Gresser et al. v. The Dow Chemical Company, Inc., et al. (Ind. Ct. App. April 30, 2013). Plaintiffs purchased a home that had been treated with the pesticide, Dursban TC. Shortly after moving into the home, plaintiffs allegedly experienced adverse health impacts that they attributed to the pesticide. Plaintiffs therefore filed product liability claims against Dow and negligence claims against the pesticide applicator.

Dow filed for summary judgment, arguing (1) that the Dursban was not a defective product and (2) that plaintiffs' claims were preempted under federal law. The trial court granted summary judgment, finding that Dursban was not a defective product and that plaintiffs' claims were preempted. On appeal, the Indiana appellate court noted that Indiana's Product Liability Act ("IPLA") provides a rebuttable presumption that a product is not defective where, before the sale, the manufacturer complies with all applicable codes, standards, regulations or specifications established by an agency of the United States or Indiana. Because Dow had registered the pesticide in compliance with the applicable FIFRA regulations, the court found that Dow was entitled to a statutory presumption that its product was not defective. Plaintiffs presented no admissible evidence to rebut this presumption, and therefore, the court found that Dow was entitled to summary judgment under the IPLA.

With respect to Dow's alternative preemption argument, however, the court found that the trial court's grant of summary judgment on this ground was improper. The court cited to Dow Chemical Co. v. Ebling, 753 N.E.2d 633 (Ind. 2001), noting that "the use of state tort law to further the dissemination of label information to persons at risk clearly facilitates rather than frustrates the objectives of FIFRA and does not burden an applicator's compliance with FIFRA."

To see a copy of this opinion, please click here.

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).

 

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.

U.S. EPA Releases Chemical Data Reporting Information

By Steven M. Siros

On February 11, 2013, U.S. EPA released 2012 Chemical Data Reporting ("CDR") information on more than 7,600 chemicals in commerce.  Under the CDR rule, which was promulgated under TSCA, companies are required to report manufacturing and import data if the site-specific production or import volume of the chemical exceeds 25,000 pounds.  According to U.S. EPA Administrator Lisa Jackson, "[t]he 2012 Chemical Data Reporting information will help EPA and others to better assess chemicals, evaluate potential exposures and use, and expand efforts to encourage the use of safer chemicals."  Administrator Jackson further noted that "[t]he CDR data also highlight the clear need for TSCA reform."   The 2012 CDR information is available at http://www.epa.gov/oppt/cdr/index.html.

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.

 

 

 

New Guide For Safer Chemicals Released

By E. Lynn Grayson

The Guide to Safer Chemicals (Guide) was released today by a broad coalition of groups working to replace chemicals of high concern with safer alternatives. This first-of-its kind tool sets benchmarks for how manufacturers, retailers and purchasers can track their progress to using chemicals in products that are safer for human health and the environment.

"This practical, easy-to-use guide is intended to revolutionize the way companies are able to move away from hazardous chemicals and replace them with safer alternatives," said Dr. Mark Rossi, Co-Chair of BizNGO and lead author of The Guide." Today's business leaders recognize that comprehensive programs for safer chemicals are essential to innovation, informed decisions, and clear communication with suppliers."

Every week new scientific research links exposure to chemicals of high concern in products to the increasing incidence of serious chronic health problems, including asthma, childhood cancers, infertility and learning and development disabilities. The uncertainty surrounding the safety of chemicals is eroding consumer confidence in a wide range of products.

The Guide is a how-to-resource for implementing the visionary BizNGO Principles for Safer Chemicals, which are: 1) Know & Disclose Product Chemistry; 2) Assess & Avoid Hazards; 3) Commit to Continuous Improvement; & 4) Support Public Policies & Industry Standards.

The Guide is a practical tool for all downstream users of chemicals (purchasers, retailers and product manufacturers) to benchmark their progress toward safer chemicals use. A simple hiking analogy of four benchmarks—Trailhead, Base Camp, High Camp and Summit—illustrates a company's progress in implementing the Principles.

Based on industry best practices, the BizNGO Principles set the following four goals:

#1: Know and Disclose Product Chemistry: Companies need to know the chemicals in their products and supply chains and set goals to disclose this information to the public.

#2: Assess and Avoid Hazards: Once companies or suppliers know the chemicals in their products or processes, they evaluate them, identify chemicals of high concern, and implement programs to substitute chemicals of high concern with safer alternatives. Buyers work with suppliers to implement this principle.

#3: Commit to Continuous Improvement: Companies set goals and publicly report on their progress to achieving these goals, which include endorsing the four BizNGO Principles and establishing a corporate chemicals policy.

#4: Support Public Policies and Industry Standards: Companies advance the implementation of the above principles in public policies and industry standards. Goals include: Publicly presenting their work on implementing the principles; Integrating implementation of the principles into industry standards and other voluntary initiatives; Collaborating with NGOs on implementing the principles; and Engaging in public policies – regulations and legislation – that support implementing the principles.

The Guide was released today at the 7^th annual meeting of BizNGO, a coalition formed in 2006 that includes over 500 leaders from businesses, non-governmental organizations (NGOs), universities, and government agencies. Some of the companies that have endorsed the BizNGO Principles include: Staples, Hewlett-Packard, Dignity Health, Kaiser Permanente, Construction Specialties, Novation, Perkins+Will, Shaw Industries, Seventh Generation, Method, and Premier. Some of the endorsing NGO's include: Health Care Without Harm, Center for Environmental Health, Breast Cancer Fund, Ecology Center, Clean Water Action, Clean Production Action, and Health Building Network.

For more information about The Guide and the work of BizNGO, visit the website at http://www.bizngo.org/.

Fox River PCB Cleanup Allowed To Proceed

By Steven M. Siros

On November 21, 2012, a federal district court in Wisconsin rejected PRP efforts to seek modification of the remedial plan established by U.S. EPA and the State of Wisconsin to address PCB-contaminated sediments in the Fox River. In 2010, U.S. EPA and the State of Wisconsin sued several potentially responsible parties ("PRPs") in order to enforce a Unilateral Administrative Order ("UAO") that had been issued in 2007. As part of that enforcement proceeding, several PRPs argued that U.S. EPA and the State of Wisconsin had acted in an arbitrary and capricious manner by failing to issue a formal ROD amendment for the Fox River PCB remediation in light of significant exceedences of the original cost estimates.

In 2003, U.S. EPA issued a ROD requiring the dredging of approximately 6.5 million cubic yards of contaminated sediments at an estimated cost of approximately $325 million. In 2007, a ROD amendment was issued that adopted a hybrid approach that provided for both capping and dredging the PCB-contaminated sediments.  The estimated cost of the hybrid remedy was $432 million. In 2009, remediation costs for the hybrid remedy were projected to increase to $701 million (although the PRPs argued that remediation costs were really closer to $1.5 billion). Notwithstanding the significant cost increases, U.S. EPA didn't issue another ROD amendment but instead issued an Explanation of Significant Differences ("ESD"). The ESD acknowledged the cost increase but concluded that the increase did not pose a "fundamental" change that would necessitate a ROD amendment.

The court rejected the PRPs' argument that the cost increase by itself required the issuance of a ROD amendment. Although the court acknowledged that a 62% cost increase was significant, the court concluded that the cost increase itself did not alter the basic features of the remedy such that a ROD amendment would be required. Merely because something is more expensive does not change the basics of the underlying remedy, the court concluded.

The PRPs also raised a number of technical issues that they contend demonstrated a clear bias by the governmental agencies in favor of the more expensive dredging remedy. The court rejected these arguments, finding that "the record demonstrates a colossal effort to get it right and to consider all options fairly and honestly—without prejudice, without arbitrariness and without caprice." The court therefore denied the PRPs summary judgment motions and instead granted summary judgment in favor of the government on the issue of the propriety of the hybrid remedy.

To read a copy of the court's opinion, please click here.

Important Environmental Compliance Considerations In The Wake Of Hurricane Sandy

By Steven M. Siros and Allison A. Torrence

As Hurricane Sandy sweeps across the Eastern Seaboard, the images of its destructive power are humbling. As everyone begins to dig out from the damage caused by the storm, it is important to remember the environmental lessons learned from past storms and natural disasters. Inevitably, environmental issues will be a serious concern after Hurricane Sandy has run its course. As facilities move forward with the task of attempting to resume normal operations, there are a number of environmental issues that should be considered.

Releases of Hazardous Substances and Oil Spills

U.S. EPA requires releases of hazardous substances at or above specified "Superfund Reportable Quantities" ("RQs") to be reported to federal authorities. Releases of certain extremely hazardous substances above a RQ trigger reporting requirements to state and local authorities, as well as to the federal authorities. Additionally, some state and local governments require notification for any size release of hazardous substances. According to U.S. EPA, reporting is required even if the release occurred only as a result of a hurricane or other natural event.

After notification, cleanup of the hazardous substances will likely be required. Although an "Act of God" may be a defense to certain cleanup liability under CERCLA, U.S. EPA has taken an aggressive position in the past, arguing that past hurricanes did not trigger this defense.

Oil spills are also a significant concern when there is heavy rain and flooding. Facilities with Spill Prevention, Control and Countermeasure ("SPCC") Plans will need to ensure that secondary containment for aboveground storage tanks is maintained after the storm. Any oil spill that creates a visible sheen on navigable waters or adjoining shorelines must be reported to the federal government. There is no "Act of God" defense under the federal oil spill laws.

Here are some helpful links to U.S. EPA's websites that provide further guidance on hazardous substances and oil spill reporting:

http://www.epa.gov/oem/content/reporting/index.htm (Information On How To Report Releases of Hazardous Substances or Petroleum Products)

http://www.epa.gov/oem/content/epcra/serc_contacts.htm (List of State Emergency Response Contacts)

http://www.epa.gov/region4/r4_hurricanereleases.html (Information on Emergency Operating Procedures)

Wastewater Discharges

Wastewater treatment systems can overflow during and after significant rain events, such as a hurricane. These types of overflows can violate the operator's license and other regulatory requirements unless proper care is taken during and after the rain event. Operators must provide immediate notification (typically to the State regulators) of overflows caused by the severe rain event in order to preserve available defenses the operator may have for the overflow.

Stormwater Management

Many facilities are covered by a site-specific or regional stormwater management permit, requiring structural Best Management Practices ("BMPs") to prevent excess stormwater runoff. Failure of BMPs, such as silt fencing and retention basins, can cause violations and result in penalties. Following significant storms such as Hurricane Sandy, it is important that structural BMPs be inspected to ensure that they continue to function as intended.

Air Emissions

Most air permits provide exceptions for "malfunctions" that may be caused by storms or other uncontrollable events. Any excess emissions caused by such a malfunction should be carefully documented to support the malfunction defense. Additionally, many facilities have air permits that regulate the use of emergency generators, usually by providing limits on the total hours the emergency generators can be in operation. Therefore, care should be taken to record the total time any emergency or backup generators are used to ensure that any applicable regulatory limits are not exceeded.

Insurance Claims

Hurricane Sandy has left behind significant property damage and business interuptions, which may be covered under an owner's insurance policy. Insurance coverage will depend on the terms of each insurance policy, and the specific circumstances leading to the loss. When potential property damage or business interuption is identified, the owner should provide prompt notice to its insurer and document the loss to the extent possible.

For more information about potential environmental impacts from Hurricane Sandy, visit U.S. EPA's hurricane webpage: http://www.epa.gov/hurricanes/

For information concerning U.S EPA's response to the damage caused by Hurricane Katrina, visit U.S. EPA Region 4's webpage: http://www.epa.gov/region4/Katrina/