Corporate Environmental Lawyer

U.S. EPA Considering Limiting Self-Disclosure Incentives

By Steven M. Siros

Under U.S. EPA's current audit policy, companies that self-disclose environmental violations may be entitled to the elimination or reduction of penalties for non-compliance.  However, U.S. EPA recently announced that it is considering limiting the benefits that companies can receive for voluntarily self-disclosing environmental violations. 

According to U.S. EPA, in fiscal year 2011, self-disclosures only resulted in the reduction of 3,000 pounds of pollutants as compared to 1.8 billion pounds in pollutant reduction achieved through other enforcement mechanisms.  U.S. EPA also commented that these self-disclosures are not being made in high-priority enforcement areas.  For example, 54 percent of the disclosures made from fiscal year 1999 through 2011 were made under the Emergency Planning and Community Right to Know Act.   U.S. EPA's recently issued draft National Program Manager Guidance provides that U.S. EPA intends to focus its enforcement priorities on pollution that poses the greatest threats to public health and the environment, such as emissions from coal fired power plants.  The draft guidance questions whether U.S. EPA's self-disclosure program has been effective in reducing high-threat pollutants.

Notwithstanding U.S. EPA's skepticism, it should be noted that the volume of pollution reduced through self-disclosures in 2011 may be an anomaly.  For example, in 2009, 22.9 million pounds of pollutants were reduced through self-disclosures out of a total pollutant reduction of 580 million pounds.  Moreover, even U.S. EPA has acknowledged that it continues to receive large numbers of self-disclosures each year which should enable U.S. EPA to better focus its enforcement priorities on what it deems high-threat pollution. 

 U.S. EPA has not provided specific details concerning what changes it might be contemplating with respect to the audit policy's self-disclosure incentives but we will continue to track this issue. 

Removal Pitfalls: Toxic Tort Case Remanded Back To State Court

By Steven M. Siros

A recent federal court decision out of the Northern District of Ohio illustrates the importance of carefully evaluating when the 30-day deadline for filing a removal petition begins to run.  In Tolloty et al. v. Republic Services, Inc. et al., plaintiffs sued defendants in Ohio state court seeking damages for illnesses allegedly caused by exposure to toxic chemicals from a landfill owned and operated by defendants.  Of the four defendants sued, only one of the defendants was incorporated in Ohio. 

During a deposition of one of the defendant's corporate witnesses, evidence came to light that the Ohio defendant-corporation had not been in existence at the time of plaintiffs' alleged injuries; rather, another corporation with the same name (but incorporated in Delaware) had owned and operated the landfill at that time.  Following the deposition, defendants sent a letter to plaintiffs' counsel asking them to dismiss the Ohio corporation from the litigation; plaintiffs refused.  Within 30 days of receipt of that letter, defendants removed the case to federal court, asserting that the federal court had diversity jurisdiction over the matter since none of the defendants were incorporated or domiciled in Ohio (with the exception of the Ohio defendant-corporation that defendants alleged was fraudulently joined to defeat diversity).  Plaintiffs moved to remand the case back to state court on the basis that more than 30 days had passed since the date that defendants received the transcript of the deposition during which the testimony concerning the Delaware corporation had come to light.  In response, defendants argued that the 30-day clock should not have commenced until such time as plaintiffs refused to dismiss the Ohio defendant-corporation from the litigation.

In considering plaintiffs' request to remand the case, the court noted that a "defendant seeking removal must strictly comply with the timing requirements of 28 U.S.C. §1446(b)."  All ambiguity regarding the scope of §1446(b) should be resolved in favor of remand to the state courts.  Here, defendants' removal petition was filed more than 90 days after defendants received the deposition transcript.  Defendants could point to no operative facts or additional evidence relevant to the issue of fraudulent joinder that became known to them subsequent to the deposition at issue.  The court rejected defendants' argument that until such time as the plaintiffs refused to dismiss the Ohio defendant-corporation, their removal petition was not ripe.  Finally, in what was likely the final nail in defendants' removal coffin, the court noted that even before the deposition at issue, defendants should have been on notice of the underlying facts that they rely upon to make their fraudulent joinder argument.  The court therefore granted plaintiffs' motion to remand the case back to state court.  To see a copy of the opinion, please click here.

Water Scarcity Challenges Headed To Supreme Court

By E. Lynn Grayson

Three petitions have been filed with the U.S. Supreme Court seeking a review of a recent 11^th Circuit Court of Appeals ruling that authorized the U.S. Army Corps of Engineers to allocate additional water from Lake Lanier to meet Atlanta's growing water supply needs. Lake Lanier provides three-fourths of the drinking water for Atlanta. These actions continue the "water wars" litigation between Alabama, Florida and Georgia over the allocation of water resources in this area of the United States.

At issue in these petitions are long term, continuing conflicts over how the Corps manages its projects in the Apalachicola-Chattahoochee-Flint River Basin. In particular, ongoing disputes have focused on the Corps' management of its four Chattahoochee River dams, including the Buford Dam, that creates Lake Lanier.

The petitioners are in agreement that the 11^th Circuit Court of Appeals ruling should be overturned citing its failure to recognize that only Congress has the authority to reallocate water stored in Lake Lanier as well as the fact that this latest decision overlooks existing case law to the contrary, some of which relates to the very subject matter at issue here.

These petitions are a reminder of the growing significance over water resources management in the U.S. today. While many view water resources to be abundant and readily available, water scarcity is a reality for many areas right now and these challenges are increasing with population growth and climate change-related impacts.

The 11^th Circuit ruling in In re MDL-1824 Tri State Water Rights Litigation is available at http://www.ca11.uscourts.gov/opinions/ops/200914657.pdf.

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 MOU For EPA And DoD

By E. Lynn Grayson

EPA and DoD have entered into a new Memorandum of Understanding (MOU) to advance the use of innovative technologies and their mutual interests in sustainability. This MOU is entered into between EPA through its Office of Research and Development, and the Department of Defense through its Office of the Deputy Under Secretary of Defense for Installations and Environment, to establish relations between the two institutions regarding collaboration on their mutual goals.

The Office of Research and Development (ORD) is the scientific research arm of EPA, whose leading-edge research helps provide the solid underpinning of science and technology for the EPA. The work at ORD laboratories, research centers, and offices across the country helps improve the quality of air, water, soil, and the way these resources are used.

The Office of the Deputy Under Secretary of Defense for Installations and Environment ((DUSD-I&E)) is the principal advisor to the Secretary of Defense on matters related to Department of Defense (DoD) installation capabilities, programs, and budgets. Responsibilities include installation-energy programs and policy, environmental management, safety and occupational health, environmental restoration at active and closing bases, conservation of natural and cultural resources, pollution prevention, and environmental research technology.

Subject to mutual consent and availability of funding, EPA and DoD intend to carry out joint activities to advance the development and/or demonstration of new applications and technologies that can be used to achieve mutual sustainability goals. These applications and technologies will use both new and existing data about health and the environment, as well as new data developed within the scope of this MOU.

EPA and DoD intend to cooperate in research, development, and demonstration of technologies that can be used to achieve mutual goals. Joint EPA-DoD activities are expected to be undertaken subject to available funding and resources within each agency. Each party may contribute funding and in-kind resources, depending on the collaborative project, which is consistent with the goals, missions, and programmatic requirements of the party.

The MOU is effective for five (5) years until 2017.

EPA Releases DMR Pollutant Loading Tool

By E. Lynn Grayson

EPA recently released the Discharge Monitoring Report (DMR) Pollutant Loading Tool designed to help individuals determine who is discharging, what pollutants they are discharging and how much, and where they are discharging. The tool calculates pollutant loadings from permit and DMR data from EPA's Permit Compliance System (PCS) and Integrated Compliance Information System for the National Pollutant Discharge Elimination System (CIS-NPDES). Data is available for the years 2007 through 2010. Pollutant loadings are presented as pounds per year and as toxic-weighted pounds per year to account for variations in toxicity among pollutants. The tool ranks dischargers, industries, and watersheds based on pollutant mass and toxicity, and presents "top ten" lists to help you determine which discharges are important, which facilities and industries are producing these discharges, and which watersheds are impacted.

The tool also includes wastewater pollutant discharge data from EPA's Toxics Release Inventory (TRI). Data is available for the years 2007 through 2010. Users can search TRI data to find the facilities with the largest pollutant discharges to surface waters or sewage treatment plants (a.k.a. Publicly-Owned Treatment Works – "POTWs"). Users can also compare the DMR data search results against TRI data search results and vice versa. The tool clearly labels the source of data when displaying search results but does not mix TRI or DMR data when calculating pollutant discharges.

The Loading Tool uses discharge monitoring and permit data from PCS and ICIS-NPDES. PCS and ICIS-NPDES are databases that automate entering, updating, and retrieving discharge monitoring and permit data:

• PCS and ICIS-NPDES are national in scope, including data from all 50 states and 21 U.S. territories and tribes;
• PCS and ICIS-NPDES contain discharge data that facilities determine through effluent chemical analyses and metered flow; and
• PCS and ICIS-NPDES collectively include information for facilities in all point source categories that discharge directly to receiving streams.

EPA has verified the accuracy of the tool's calculations. EPA has also performed a limited review of the underlying data that has focused on facilities with the largest amounts of pollutant discharges.

DMR data has long been a key source of citizen suits under the Clean Water Act. With the creation of this new tool, this data will be more easily obtained and available in a more user friendly format.

The tool is available at http://cfpub.epa.gov/dmr/.

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/.