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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.
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:
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/.
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.
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.
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).
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.
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.
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.
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.
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.
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.
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:
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.
In 2010, the states of Michigan, Minnesota, Ohio, Pennsylvania and Wisconsin sued the United States Army Corp of Engineers and the Metropolitan Water Reclamation District of Greater Chicago, seeking injunctive relief aimed at preventing Asian carp from entering into Lake Michigan through the man-made Chicago Area Waterway System ("CAWS"), which connects Lake Michigan to the Mississippi River. The plaintiffs claimed that the defendants were managing the CAWS in a manner that will allow the invasive Asian carp to move into Lake Michigan and thereafter the other Great Lakes, causing an ecological disaster that amounts to a public nuisance under federal common law. The district court for the Northern District of Illinois denied plaintiffs' request for a preliminary injunction seeking, among other actions, the closure of the City of Chicago locks connecting the CAWS to Lake Michigan.
Earthjustice, a non-profit public interest law firm dedicated to environmental protection, and Appalachian Mountain Advocates, a non-profit environmental law and policy organization, recently released a new study, "State of Failure: How States Fail to Protect Our Health and Drinking Water From Toxic Coal Ash," a comprehensive study of state regulations in 37 states. The study highlights the lack of state-based regulations for coal ash disposal and points to the 12 worst states when it comes to coal ash dumping: Alabama, Georgia, Illinois, Indiana, Kentucky, Missouri, North Carolina, Ohio, South Carolina, Tennessee, Texas, South Carolina and Virginia.
There are currently nearly 700 coal ash ponds and hundreds of coal ash landfills in the U.S. The study finds that most states do not require coal ash disposal sites to employ appropriate safeguards. Of the 37 states examined:
The EPA is currently considering a federal proposal to regulate coal ash that includes two options: the first option would classify coal ash as hazardous waste, requiring water quality monitoring, liners and the phase out of dangerous "wet" storage of coal ash, such as the pond that collapsed in Kingston, Tennessee in 2008. The second option would continue to allow states to regulate coal ash with appropriate safeguards in place.
How best to manage coal ash remains an ongoing controversy with environmental groups and utility industry representatives at conflict over how EPA should regulate these waste materials. Industry trade groups continue to work with interested parties to ensure that any coal ash reforms ensure the best possible reuse and recycling efforts continue in addition to appropriate waste management practices.