The ABA has published a new environmental law book focused on environmental considerations in corporate transactions. According to the ABA, the book not only provides practical approaches to minimize or manage environmental liabilities but can also help extract value in transactions when adopted early enough in a deal. The book addresses a broad array of environmental issues that often arise in business transactions including but not limited to Clean Water Act, TSCA, CERCLA, toxic tort, environmental due diligence and successor liability concerns.
Jenner & Block attorneys authored three chapters in this new book: Chapter 5 – Clean Air Act Issues in Business Transactions – Bill S. Forcade (Ret.); Chapter 14 – Using Federal and State Auditing Policies in Business Transactions – Steve Siros and Michael Strong; and, Chapter 15 – SEC Disclosure Obligations: Increasing Scrutiny on Environmental Liabilities and Climate Change Impacts – E. Lynn Grayson and Patricia Boye-Williams.
The book is available from the ABA at www.ababooks.org.
A new ASTM guidance has been issued that addresses issues and concerns following a typical Phase I investigation, often premised upon existing guidance, E 1527-Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process. The new guidance, E 2790-11, Standard Guide for Identifying and Complying with Continuing Obligations, is intended for use on a voluntary basis primarily by parties who desire to satisfy continuing obligations at commercial real estate or at forestland or rural properties. According to ASTM, the guide offers information and suggested procedures potentially useful to persons who wish to assert a defense to CERCLA liability and to establish one of the landowner liability protections (LLPs).
A recent decision from the Second Circuit found that a plaintiffs' failure to identify the specific contaminant alleged to present an imminent and substantial harm to human health or the environment was fatal to plaintiffs' RCRA citizen suit. In the case of Brod v. Omya, Inc., the plaintiffs filed a RCRA citizen suit notice that identified 21 contaminants that they alleged were being released into the environment, thereby creating an imminent and substantial endangerment within the meaning of RCRA. After waiting the requisite 90 days, plaintiffs filed a RCRA citizen suit action in the United States District Court for the District of Vermont. During the pendency of the litigation, it was discovered that arsenic and aminoethylthanolamine ("AEEA") were present in groundwater beneath the site. Plaintiffs attempted to rely on the presence of these two additional contaminants in further support of their argument that defendant's releases were creating an imminent and substantial endangerment. The district court dismissed plaintiffs' RCRA citizen suit. On appeal, the Second Circuit noted that none of the 21 contaminants originally identified in plaintiffs' RCRA notice were present at levels sufficient to create an imminent and substantial endangerment to human health or the environment (none of these contaminants exceeded the levels set forth in Appendix 1 of 40 CFR Part 257). With respect to the two additional contaminants (arsenic and AEEA), the Second Circuit found that plaintiffs' failure to identify these two contaminants in the original RCRA notice precluded plaintiffs from relying on those contaminants to argue that an imminent and substantial endangerment existed. The Second Circuit therefore affirmed the district court's dismissal of plaintiffs' RCRA claims.
By Phoebe B. Scott
The June 2011 Update on Environmental Lender Liability is now available and the content can be viewed here.
Stephen H. Armstrong will speak at an upcoming National Brownfield Association (NBA) event titled "Sustainable Vision Breakfast," to be held July 21, 2011 at Jenner & Block's Chicago office conference center. The event will feature a panel with leaders of the City of Chicago, IEPA, and USEPA Region 5 presenting their sustainability vision and the opportunities that it will create for business, the environmental community and civic/nonprofit organizations. Following the panel discussion, Mr. Armstrong, who is NBA Illinois Chapter President, will share his thoughts on implementing the sustainability vision. See link below for more information.
Are Climate Change Tort Actions Dead? What’s Next After Supreme Court Decision in AEP v. Connecticut?
Jenner & Block's Climate & Clean Technology Law Practice invites you to a webinar presentation exploring the legal and practical ramifications of the U.S. Supreme Court's June 20, 2011 decision in American Electric Power Co. v. Connecticut, No. 10-174. The Court's decision resulted in the dismissal of the toxic tort lawsuit brought by several Northeastern states, seeking to recover damages resulting from alleged climate change impacts from power plant greenhouse gas emissions. The webinar will specifically focus on the viability of state common law nuisance actions in the wake of the AEP decision.
This one-hour webinar is presented by Jenner & Block Partners Gabrielle Sigel and Steven Siros on Tuesday, August 9, 2011, at 12:00 CST. 1.0 hour of Illinois MCLE credit is requested.
To register for this free webinar, please send an email to Angelique Hardy Heinz at mailto:AHeinz@jenner.com. To participate in the webinar, you must be able to access WebExTM. A link will be provided upon registering for the course.
Jenner & Block LLP has been certified by the MCLE Board of the Supreme Court of Illinois as an Accredited Provider. Credit for additional jurisdictions may be available upon request.
The U.S. EPA and the U.S. Army Corps of Engineers have extended the public comment period by 30 days for the draft guidance on Identifying Waters Protected by the Clean Water Act. In response to requests from state and local officials, as well as other stakeholders, U.S. EPA and the Corps will take additional comment until July 31, 2011 on this important draft guidance that aims to protect U.S. waters.
According to the U.S. EPA, this change in the public comment period will not impact the schedule for finalizing the guidance or alter the intent to proceed with a rulemaking.
Public input received will be carefully considered as the agencies make final decisions regarding the guidance. These comments will also be very helpful as the agencies prepare a Notice of Proposed Rulemaking.
The original 60-day public comment period was originally set to expire on July 1, 2011.
For more information about this new guidance and the extension of the public comment period until July 31, 2011, visit http://water.epa.gov/lawsregs/guidance/wetlands/CWAwaters.cfm.
By Steven Siros
On July 6, 2011, U.S. EPA finalized its Cross-State Air Pollution Rule (APR) which will require substantial reductions in SO2 and NOX emissions at power plants in 27 states. The new rule is intended to act as a replacement to the previously vacated Clean Air Act Interstate Rule. The APR is estimated to effect approximately 1,000 power plants in these 27 states and will require these power plants to cut their SO2 emissions by 73% and NOX emission by 54% from 2005 levels by 2014. The new rule is expected to force power plants to install new pollution control equipment and/or switch to cleaner burning fuels such as natural gas. According to U.S. EPA, the new rule will prevent at least 13,000 premature deaths and will result in $120-$280 billion in annual health and welfare costs by 2014, which far outweighs U.S. EPA's cost estimate of $2.4 billion. Critics of the new rule, however, argue that the January 12, 2012 compliance deadline doesn't provide sufficient time for companies to come into compliance with the new rule. At the same time that the final rule was published, U.S. EPA also issued a supplemental notice of proposed rulemaking seeking to require six states (Iowa, Kansas, Michigan, Missouri, Oklahoma, and Wisconsin) to implement summer-time NOX reductions.
U.S. EPA recently announced the first Great Lakes Week scheduled for October 11-14, 2011 in Detroit, MI. The theme of Great Lakes Week is "Working Together, Taking Action" and will bring representatives of the U.S. and Canadian governments together, along with other public and private groups, to address how best to implement solutions for the lakes' most challenging concerns.
EPA coordinates the efforts of 15 federal and binational agencies as part of President Obama's Great Lakes Restoration Initiative. Great Lakes Week advances the GLRI, the largest investment in the lakes in two decades. The lakes provide jobs, recreation and drinking water for more than 30 million people in the Great Lakes basin. Great Lakes Week represents a new partnership to improve the places around the basin where people live, work, learn and play.
The week's activities will focus on progress that has been made in restoration efforts and innovative solutions to challenges affecting the Great Lakes. Hosting the annual meetings and conferences of various organizations in one place will make this one of the most wide-ranging Great Lakes summits in history. The following meetings are scheduled:
- International Joint Commission Biennial Meeting.
- Great Lakes Commission Annual Meeting.
- Great Lakes Restoration Federal Meeting (closed press).
- Healing Our Waters – Great Lakes Coalition 7th Annual Great Lakes Restoration Conference.
- Binational Accountability Report & Public Forum.
- Great Lakes Week Panel & Town Hall.
- Detroit River Front Walk and Boat Tour.
- U.S. Areas of Concern Program Annual Meeting.
For more on Great Lakes Week, participating organizations and how to register for events, see www.glri.us/glweek.html.