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 (email@example.com).
BPA Added To California's Proposition 65 List
By Steven M. Siros
On April 11, 2013, California's Office of Environmental Health Hazard Assessment ("OEHHA") added bisphenol A ("BPA") to the list of chemicals known in the State of California to cause reproductive harm. OEHHA's listing of BPA is based on a 2008 report from the National Toxicology Program ("NTP") that BPA causes reproductive toxicity at high doses. Both the NTP report and OEHHA's proposal to list BPA were the subject of significant controversy, with industry groups challenging the science relied upon by NTP and environmental advocacy groups arguing that the proposed listing was long overdue. In an effort to respond to some of industry's concerns, OEHHA's proposed Maximum Allowable Dose Level ("MADL") for BPA was set at a level that has been characterized as being fairly high (290 micrograms per day) although that is likely to be challenged by environmental advocacy groups.
In any event, there is certainly likely to be a flurry of Proposition 65 notice letters sent out by the usual group of Proposition 65 plaintiffs and companies that distribute BPA-containing products in California would be well-served to ensure that their products contain the requisite Proposition 65 warnings.
Please click here for further information on OEHHA's decision to add BPA to the Proposition 65 list.
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 (firstname.lastname@example.org).
Pacific Ocean—Next CERCLA NPL Site?
By Steven M. Siros
The Center of Biological Diversity ("CBD") has filed a petition with U.S. EPA seeking to add the Northwestern Hawaiian Islands and waters of the Pacific Ocean within the United States' jurisdiction to CERCLA's National Priorities List ("NPL"). In its petition, CBD argues that the large mass of plastic debris known as the "Pacific Garbage Patch" is particularly harmful due to its impacts on marine wildlife and the coral reef ecosystems of the Hawaiian Islands. The CBD further argues that because these plastics contain toxic chemicals that are passed up through the food chain, the plastic debris is also harmful to humans that consume fish from the region.
In its press release, the CBD indicated that "this is the first time that plastic-infested waters of the United States have been nominated for Superfund designation." U.S. EPA has one year to act on the petition. In the event that U.S. EPA were to grant the CBD petition, it is unclear who might be responsible for remediating the contamination. To view the CBD petition, please click here.
DOJ Not Required To Produce Interagency Memorandum in CERCLA Case
By Steven M. Siros
A recent Seventh Circuit decision rejected a PRP's efforts to obtain interagency memorandum and other communications between the Environmental Enforcement and the Environmental Defense Sections within the United States Department of Justice ("DOJ"). See Menasha Corp. et al. v. United States, (7th Cir. 2013). In 2010, the United States, on behalf of U.S. EPA and the Department of the Interior, filed a lawsuit seeking to compel a number of alleged PRPs to remediate the Fox River Superfund Site (which remediation has been estimated to be as high as $1.5 billion).
Shortly after the lawsuit was filed, DOJ sought judicial approval of a proposed consent decree with several defendants in which the United States offered to contribute $4.5 million to the cleanup in recognition that other federal agencies (including U.S. EPA and the United States Army Corps of Engineers) had contributed to the PCB contamination in the Fox River. Menasha Corporation ("Menasha"), one of the defendants in the underlying litigation, challenged the consent decree in part on the grounds that the federal agencies' contribution to the contamination at the site was far greater than the $4.5 million that they were proposing to contribute to the site cleanup. Menasha was concerned that the consent decree would act as a bar to its contribution claims against the United States.
Menasha therefore sought to obtain communications between the enforcement and defense sections of DOJ, likely hoping that these communications might evidence some collusion between the defense and enforcement sections of DOJ. Menasha argued that since the two sections of DOJ represent separate governmental entities with divergent interests, they were in fact adversaries. Since communications between adverse parties results in a waiver of privilege, Menasha argued that it was entitled to those communications. The District Court agreed and ordered the requested materials be produced. The Seventh Circuit was not similarly convinced.
Although some might analogize this situation to the adversary relationship between the State's attorney and the public defender, the Seventh Circuit analogized the situation to one where a consumer sues a private company in a personal injury lawsuit. One division of the company might seek to have the case settled to avoid bad publicity while the other division would seek to litigate the case to avoid setting a bad precedent. The general counsel would then make a final decision but the Seventh Circuit opined that one wouldn't reasonably argue that communications between the two divisions should be produced because of the adversarial relationship between the two divisions.
The Seventh Circuit expressed concern that were it to order disclosure of internal communications between competing interests within the Justice Department, the result would be that the Justice Department could never shield attorney work product in a case like this without "a crippling reorganization of the Department." Instead, the Seventh Circuit concluded that since the only federal party in the underlying litigation was the United States, a single party represented by a single representative, DOJ, communications between the separate sections of DOJ were not communications between adverse parties. As such, the Seventh Circuit concluded that these communications were protected by the attorney work product privilege and need not be disclosed.
Some might argue, however, that where DOJ represents a site PRP (a defendant) and U.S. EPA (or in this case, the Department of the Interior) (in its enforcement capacity), even if there is only a single federal entity named in the litigation, DOJ should not be able to hide behind the attorney work product privilege to shield communications between the two DOJ sections. The Seventh Circuit seemed to have left this door open a little, referring in dicta to the possibility of a waiver in a situation where you have independent federal agencies "squaring off against each other as opposing parties in litigation." However, the court acknowledged that this was not the fact pattern before it and it therefore rejected Menasha's efforts to obtain disclosure of these communications.
Minnesota Bans Triclosan For State Government
By E. Lynn Grayson
Minnesota is believed to be one of the first state governments to stop buying products containing triclosan, an antibacterial commonly used in soap and cosmetics. Through its combined buying power, the state purchases about $1 million worth of cleaning products a year.
While there is uncertainty about whether triclosan is hazardous to humans, there also is no evidence that hand soaps and/or hand sanitizers containing triclosan are better than regular soap and water at preventing infections. Laboratory studies have found that triclosan may disrupt hormones, interfere with muscle function and promote the growth of stronger bacteria. In addition, there is growing concern suggesting a buildup in the environment may present risks to wildlife.
Triclosan also is known as 2,4,4'-trichloro-2'-hydroxydiphenyl ether, 5-chloro-(2,4-dichlorophenoxy) phenol, trichloro-2'-hydroxydiphenyl ether, CH-3565, Lexol 300, Irgasan.
In the environment, triclosan becomes a dioxin, a family of environmental contaminants linked to a variety of health risks, from cancer to hormone disruption, and which persist in the environment for years. They once came largely from industrial sources such as paper pulp mills and garbage incinerators, but increasingly stringent regulations have greatly reduced their emissions.
The recent study of triclosan in eight Minnesota lakes, conducted by scientists at the University of Minnesota and the Science Museum of Minnesota, found that triclosan and the dioxins it forms have increased in sediment while other kinds have decreased. In short, even though the water-treatment process removes most of the triclosan, antibacterial products are now the primary source of dioxins in the lakes and rivers.
There is growing concern about Triclosan and its impact on humans and the environment. This recent action by the State of Minnesota is the latest development for a substance that is undergoing continuing scrutiny in the United States and in other countries as well.
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.
Will Ninth Try Be The Charm?—DTSC Issues Ninth Draft Of Green Chemistry Regulations
By Steven M. Siros
California's Department of Toxic Substances Control ("DTSC") issued its ninth draft of the Green Chemistry Initiative in an effort to respond to industry criticisms of early versions of the regulations. (See prior blog on Green Chemistry Initiative.) The comment period on this latest draft began on January 29, 2013 and will run through February 28, 2013.
In its latest version of the regulation, DTSC made a number of positive changes (from an industry perspective), including:
Notwithstanding that these revisions were a result (at least in part) of industry comments, the draft regulations significantly expand the list of chemicals that are on chemicals of concern list (adding European Union Category 1 respiratory sensitizers and Clean Water Act 303(d) list chemicals) as well as expanding the scope of the public review and comment provisions. It is expected that these draft regulations will be the subject of extensive comments by both industry and environmental groups. However, the consensus also appears to be that this will be the last set of draft regulations that will be issued by DTSC. At the close of the public comment period on February 28, 2013, it is expected that these regulations will become effective shortly thereafter. Please click here to go to DTSC's Green Chemistry website to see a copy of DTSC's lastest set of draft regulations.
U.S. Appellate Court Defines Settling Parties' Rights to CERCLA Contribution and Cost Recovery
By Gabrielle Sigel
On December 19, 2012, the U.S. Court of Appeals for the Seventh Circuit issued a panel decision that clarifies the law within that Circuit on issues left unresolved after several U.S. Supreme Court's decisions interpreting certain provisions of the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. § 9601, et seq. ("CERCLA"). In Bernstein v. Bankert, No. 11-1501 (U.S. Ct. App. 7th Cir., Dec. 19, 2012), the appellate court addressed the rights of parties, who settle with U.S. EPA, to pursue non-settling parties for payment of their costs. The court's decision revived CERCLA causes of action that a lower court had ruled were barred under CERCLA's statutes of limitations.
The Bernstein plaintiffs are trustees of a fund that had been established to pay costs of complying with two Administrative Orders on Consent ("AOCs") that potentially responsible parties ("PRPs") had signed with U.S. EPA ‒ one in 1999 and one in 2002 ‒ to address contamination of a property in Indiana known as Third Site. At Third Site, prior to 1982, the now defunct Environmental Chemical and Conservation Company ("Enviro-Chem") had conducted waste handling and disposal activities. The 1999 AOC, which had been executed by both de minimis and other PRPs, required an environmental investigation and engineering analysis at the Site and payment of government costs. In October 2002, U.S. EPA approved the settling parties' activities under that first AOC. In November 2002, U.S. EPA issued a second AOC, this one requiring PRPs to pay for the removal action that EPA selected for the Site. Although several PRPs paid into the trust established to fund the requirements of both AOCs, the alleged former individual owners of the Site ("the Bankerts"), their corporate entity Enviro-Chem, and their insurers did not pay.
In 2008, while the removal action was still ongoing, the trustees filed a complaint against the Bankerts in the Southern District of Indiana seeking CERCLA § 9607 cost recovery, a declaration of CERCLA liability, cost recovery under Indiana's Environmental Legal Actions statute ("ELA"), and recovery under other state law claims. In response to the Bankerts' summary judgment motion, the trial court first found that the trustees could not bring a § 9607 cost recovery claim, only a § 9613(f) contribution claim, and granted the Bankerts' motion for summary judgment on statute of limitations grounds with respect to the federal and state law claims, mooting claims for declaratory judgment and against the insurers. The trustee plaintffs appealed.
The appellate court first addressed the lower court's decision that the trustees could only bring a § 9613(f) contribution claim, and not a § 9607 cost recovery claim, each of which claim has a different statute of limitations. The court provided an overview of CERCLA rights of action, including when they can be triggered. The court found that "under the plain terms of the statute": (1) a person who has been sued under §§ 9606 or 9607 can bring a § 9613(f)(1) contribution action; (2) a person who has resolved liability to the federal or state government for all or some of its costs of a response action can bring a § 9613(f)(3)(B) contribution action; and (3) a person who does not fit into the qualifications for a contribution action, but still has incurred recoverable costs, can bring a § 9607 cost recovery action. (Slip op. 18-19.) The court then analyzed the trustees' rights under each of the AOCs individually, an approach which neither side had taken in their arguments before the court.
Specifically, the court first focused on the 1999 AOC, which it determined that U.S. EPA had approved as completed in October 2000. Thus, the court determined, in October 2000, the settling PRPs had resolved their liability to the government because the government's release of and covenants not to sue the settling PRPs only applied once the work was approved and completed. Because the settling PRPs had resolved their liability to the government, they could bring a contribution action under § 9613(f)(3)(B). The court rejected plaintiffs' claim to a § 9607 cost recovery action, even though they had sustained "necessary costs of response," holding that a plaintiff "is limited to a contribution remedy when one is available." (Slip op. 27.) However, the court then found that plaintiffs' contribution action, filed in 2008, was barred under CERCLA's statutes of limitations. The court did not, however, definitively determine which such statute applied. The Bankerts argued that the statute began running when the AOC was executed in 1999, based on CERCLA § 9613(g)(3), which provides a 3-year period to file contribution action after the signing of a de minimis settlement agreement. Trustees accepted that argument with respect to de miminis parties' claims, but not with respect to the claims of other settling PRPs. The trustees argued that, because there is a "gap" in the statutory language with respect to non-de miminis parties' claims, the § 9613(g) statute of limitations applicable to § 9607 cost recovery actions should apply. The court found that under either approach, the statute had run prior to the 2008 court filing – either in 2002, 3 years after the AOC was signed, or in 2003, 3 years after the completion of the removal action required in the first AOC.
The court next found that because the work under the 2002 AOC was still continuing, plaintiffs had not yet triggered their release and covenant not to sue from the government. Because their liability to the government was not yet resolved, they could not bring a § 9613 contribution action. Because a contribution action was not available, and because they allegedly had incurred response costs, plaintiffs were able to bring a § 9607 cost recovery action. Because the removal action was not yet completed, the 3-year statute of limitations following the completion of a removal action had not yet begun to run. The court rejected the Bankerts' argument that those "compelled" to incur response costs could not recover under § 9607, finding that neither Supreme Court precedent nor other legal authority required that result. Therefore, plaintiffs could pursue a § 9607 cost recovery action and a declaratory judgment action for costs incurred under the 2002 AOC. The court noted, however, that plaintiffs may not be able to impose joint and several liability because, based on the Supreme Court's decision in Burlington N. and Santa Fe Ry. Co. v. U.S., 556 U.S. 599 (2009), the Bankerts may be able to show a "reasonable basis for apportionment" of their liability. (Slip op. 37.)
The appellate court also found that Indiana's 10-year catch-all statute of limitations applied to the ELA claim and that the statute applies separately to each of the separate AOCs, because each had a separate obligation to pay and, hence, a separate "injury" for statute of limitations purposes, even though both AOCs, as well as prior orders issued by U.S. EPA, pertain to the same Site. In reaching this conclusion, the court rejected the Bankerts' request to certify questions about the state statute of limitations to the Indiana Supreme Court for decision.
Finally, the court found that the Bankerts' insurer was not entitled to summary judgment with respect to its coverge obligations for the Third Site. The insurer previously had won a defense to coverage with respect to a different Enviro-Chem site, and had sought to bar coverage here on claim preclusion or issue preclusion grounds. The court found that the facts concerning the Third Site were distinct so that the trial court needed to separately consider the insurer's coverage obligations at that site.
The Bernstein decision resulted in several important CERCLA and related holdings that, unless modified upon rehearing or en banc or by the Supreme Court, will govern environmental litigation within the Seventh Circuit. Those holdings include:
New Guide For Safer Chemicals Released
- A PRP who qualifies for a CERCLA § 9613(f) contribution action must use that cause of action to recover costs from other PRPs, and cannot use a CERCLA § 9607 cost recovery action.
- Each government settlement agreement at a single site invokes a distinct payment obligation, each of which can be the basis for a CERCLA cause of action and, therefore, a new running of the applicable statute of limitations.
- A PRP's right to bring a CERCLA § 9613(f)(3)(B) contribution action in response to its settlement with the government is not triggered unless and until the government issues a final release of the PRP's liability, typically upon acceptance of all work under the settlement agreement. Until that time, a PRP seeking to recover costs of response can only proceed under § 9607.
- A PRP who executed a settlement with the government and who was "compelled" to pay response costs is entitled to proceed under § 9607; however, that plaintiff PRP will not be able to impose joint and several liability if the defendant PRPR can prove a reasonable basis for apportioning liability.
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 7th 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/.
Court Finds That Environmental Documents Obtained From Public Agency Protected By Work Product Privilege
By Steven M. Siros
In an environmental coverage dispute, a New York federal judge recently ruled that information obtained by an insurance company from governmental agencies was protected work product and need not be disclosed in discovery. In the matter of Travelers Indemnity Co., et al. v. Northrop Grumman Corp., Northrop sought communications between its insurers and various agencies, including U.S. EPA, the Navy, and the New York Department of Environmental Conservation. Northrop's insurers argued that these materials were protected from disclosure under the attorney-client and work product privileges, likening these materials to the materials selected by an attorney in preparation for a deposition.
The court agreed, finding that information received from these public agencies after the insurers' declination of coverage fell "within the ambit of what the case law clearly indicates reflects the attorneys' work product: the documents were selected pursuant to instructions of counsel." The court also refused to order the insurers to disclose the identity of persons interviewed unless those persons were interviewed prior to the insurers' declination of coverage.
To see a copy of the order, click here.
CERCLA BFPP Protections Applicable To Certain Tenants
By E. Lynn Grayson
EPA has released new CERCLA guidance confirming that certain tenants who lease contaminated or formerly contaminated properties may be entitled to self implementing bona fide prospective purchaser liability protections.
Section 107(a)(1) of CERCLA provides that "the owner and operator of a vessel or facility ... from which there is a release, or a threatened release which causes the incurrence of response costs, of a hazardous substance, shall be liable for ... (A) all costs of removal or remedial action incurred by the United States Government ... ." Thus, without liability protection, an owner or operator of contaminated property is a potentially liable party under CERCLA. Section 107(r)(1) of CERCLA provides statutory liability protection for certain owners or operators of property, called bona fide prospective purchasers or "BFPPs." CERCLA § 107(r)(1) states:
Notwithstanding subsection (a)(1) of this section, a bona fide prospective purchaser whose potential liability for a release or threatened release is based solely on the purchaser's being considered to be an owner or operator of a facility shall not be liable as long as the bona fide prospective purchaser does not impede the performance of a response action or natural resource restoration.
In general terms, CERCLA § 101(40)(A)-(H) defines a BFPP as "a person (or a tenant of a person) that aquires ownership of a facility after [January 11, 2002]" and that establishes that:
- all disposal of hazardous substances at the facility occurred prior to acquisition;
- the person conducted all appropriate inquiry (AAI) into the previous ownership and uses of the facility;
- the person provides legally required notices;
- the person takes reasonable steps with respect to hazardous substance releases;
- the person provides cooperation, assistance, and access;
- the person complies with land use restrictions and institutional controls;
- the person complies with information requests and administrative subpoenas; and
- the person is not potentially liable for response costs at the facility or "affiliated" with any such person.
In its updated guidance, EPA confirms: 1) a tenant may derive BFPP status from an owner who satisfies the BFPP criteria; or, 2) EPA may exercise its enforcement discretion to treat the tenant as a BFPP, assuming BFPP criteria are met.
The statutory protection found at CERCLA § 107(r)(l) is self-implementing and the EPA generally will not be involved with facility-specific transactions or determinations of BFP status.
Three new model letters addressing site-specific "comfort" or status letters for tenants involved in renewable energy projects on contaminated properties also are available including:
- model federal Superfund interest and no current federal Superfund interest comfort/status letter;
- a model based on no previous federal interest comfort/status letter; and,
- a model state action comfort/status letter.
For more information or questions about this guidance, please contact Susan Boushell at 202-564-2173 (email@example.com) or James Miles at 202-564-5161 (firstname.lastname@example.org) in the Office of Enforcement and Compliance Assurance, or Brigid Lowery at 202-566-0198 (email@example.com) in the Office of Solid Waste and Emergency Response.
For a listing of the available tools and policies, including the EPA's policy on the issuance of comfort letters, see: http://cfpub.epa.gov/compliance/resources/policies/cleanup/superfund/.
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.