Corning Inc. Dismissed Out Of Action Seeking Environmental Clean-Up Costs
By Keri L. Holleb Hotaling
On August 8, 2011, glass and ceramics manufacturer Corning Inc. was dismissed without prejudice from a lawsuit seeking to recover cleanup costs associated with groundwater contamination on and around an industrial park in Downers Grove, Illinois. Maintenance tool manufacturer, Precision Brand Products, Inc. ("Precision"), brought the action against Corning and others, asserting claims for contribution under the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), codified at 42 U.S.C. § 9601 et seq., among other theories.
WI Court Finds U.S. Cannot Force PRP Into Cleanup Work
By E. Lynn Grayson
In United States, et al. v. NCR Corp., et al., case number 1:10-cv-00910, in the U.S. District Court for the Eastern District of Wisconsin, U.S. District Judge William Griesbach has rejected the government's renewed attempt to bring Appleton Papers, Inc. into the Lower Fox River Superfund Site cleanup, even after the Court's prior ruling that Appleton was not a liable party.
The U.S. wants Appleton and a few other PRPs to fund ongoing cleanup operations of the PCB-contaminated Lower Fox River in Wisconsin. Appleton holds a majority share in the LLC with NCR, a liable PRP, that is handling cleanup operations, giving Appleton control over cleanup to a certain extent. The U.S. asked the Court to revoke Appleton's shares in the LLC and grant NCR a proxy to vote the shares. This action would allow the Court to order NCR to move forward with cleanup efforts.
Judge Griesbach concluded that such relief was impossible. While the U.S. characterized the relief sought as ancillary and minor, the Court did not agree. The Court was unwilling to order Appleton to cede complete control of the NCR enterprise and concluded it simply did not have the authority to do so. In denying the U.S. request for preliminary injunction, Judge Griesbach concluded "I am not persuaded that I have the authority to order a non-liable party to give up the right to vote shares in a company over its objection."
In its filing, Appleton noted that "… the United States seeks to do through the back door what it could not do through the front door, i.e., force the company to comply with its proposed injunction, the very act that the Court said would be improper."
ABA Publishes New Book Environmental Issues In Business Transactions
By E. Lynn Grayson
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.
Failure To Identify Specific Contaminant Of Concern Fatal To RCRA Citizen Suit
By Steven M. Siros
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.
National Brownfield Association Sustainable Vision Breakfast
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.
U.S. EPA Extends Comment Period On Proposed Water Guidance
By E. Lynn Grayson
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.
EPA Announces First Great Lakes Week
By E. Lynn Grayson
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.
Seventh Circuit Holds That Environmental Group Has Standing To Challenge Validity Of Permit To Destroy Wetlands
By Keri L. Holleb Hotaling
Yesterday, the Seventh Circuit found that an environmental group, the American Bottom Conservancy (the "Conservancy"), has standing to sue to invalidate a U.S. Army Corps of Engineers ("Corps") decision to allow Waste Management of Illinois, Inc. ("WMI") to destroy over eighteen acres of wetlands in southwestern Illinois.
DOI Seeks Comments On WaterSMART Conservation Program Plan
By E. Lynn Grayson
Until August 1, 2011, the Department of Interior is seeking public comments on its draft WaterSMART (Sustain and Manage America's Resources for Tomorrow) Strategic Implementation Plan. The draft plan identifies actions to secure and stretch water supplies for use by existing and future generations.
Aging infrastructure, rapid population growth, depletion of groundwater resources, impaired water quality associated with particular land uses and covers, reservoir sedimentation, water needed for human and environmental uses, increased domestic energy development, and climate variability and change all play a role in determining the amount of fresh water available at any given place and time. It is increasingly recognized that water is the primary means through which climate change impacts the earth and people's livelihoods and well being. Water shortage and water-use conflicts have become more commonplace in many areas of the United States.
Maryland Executive Order Creates Marcellus Shale Safe Drilling Initiative
By Genevieve J. Essig
Yesterday, Maryland Governor Martin O'Malley signed an executive order which established the "Marcellus Shale Safe Drilling Initiative." According to the order, the purpose of the Initiative, which is to be administered jointly by the Maryland Department of the Environment and the Maryland Department of Natural Resources, is to "assist State policymakers and regulators in determining whether and how gas production from the Marcellus shale in Maryland can be accomplished without unacceptable risks of adverse impacts to public health, safety, the environment and natural resources."
EPI Concludes Environmental Benefits Outweigh Compliance Costs Of EPA Regulations
By E. Lynn Grayson
The Economic Policy Institute (EPI) announced on May 31st the results of an analysis of the relationship between Obama-era environmental regulations and economic factors, particularly employment. Two broad conclusions emerge from this analysis detailed in an EPI briefing paper titled Tallying Up the Impact of New EPA Rules. First, the dollar value of the benefits of the major rules finalized or proposed by the EPA so far during the Obama administration exceeds the rules' costs by an exceptionally wide margin. Health benefits in terms of lives saved and illnesses avoided will be enormous. Second, the costs of all the finalized and proposed rules total to a tiny sliver of the overall economy, suggesting that fears that these rules together will deter economic progress are unjustified.
Chicago Readies for Warmer, Wetter Climate
By William Kaplowitz
The New York Times reports that the City of Chicago has been developing plans that will enable the City to adapt to global warming. The City commissioned climatologists to model the impact that global emissions of carbon dioxide could have on Chicago's climate. According to the model, if global emissions continue at their current rate, by the end of the 21st century Chicago will have as many as 72 summer days with high temperatures over 90 degrees; for most of the 20th century, Chicago experienced on average fewer than 15 such days, and the intensity of summer heat predicted by the model is similar to that in the Deep South. A risk assessment firm forecasted that changes of that magnitude could multiply heat-related deaths, increase freezes and thaws that damage buildings, bridges, and roads, and warm winters enough that termites could for the first time survive in Chicago and damage wooden building frames.
U.S. EPA Directs Illinois to Revise Water Quality Standards to Facilitate Recreational Use of the Chicago River
By Steven M. Siros
On May 11, 2011, U.S. EPA notified the Illinois Environmental Protection Agency ("IEPA") that Illinois' water quality standards for portions of the Chicago and Calumet Rivers needed to be upgraded to protect the health and safety of persons who utilize these waterways for recreational purposes. Currently, these waterways are designated as Secondary Contact Waters pursuant to 35 Ill. Admin. Code 303.441."Secondary Contact Waters" allow for some recreational uses but those uses are limited to uses where contact with the water is incidental or accidental and the probability of ingesting the water is minimal. Activities such as fishing and commercial and recreational boating are considered allowed uses under this designation. According to U. S. EPA, because there are now numerous opportunities for the public to access these waterways to engage in a variety of recreational activities where there is a potential for more than incidental or accidental contact with the water, Illinois' water quality standards must be modified. U. S. EPA has therefore directed IEPA to promulgate new or revised water quality standards that would be sufficiently protective of recreational activities such as swimming and canoeing on portions of the Chicago and Calumet Rivers. In the event that IEPA does not act on U.S. EPA's determination, U.S. EPA indicated that it will promptly propose new or revised regulations that provide for recreational use in and on these waterways. However, the U. S. EPA letter does not provide details as to how quickly it expects IEPA to act other than to state that IEPA needs to take action as "quickly as possible".
Petition Requests Analysis and Regulations Regarding Drilling In The Marcellus Shale
By Genevieve J. Essig
Yesterday, a group of environmental organizations, led by the Chesapeake Bay Foundation, filed a joint petition requesting that certain federal agencies, with oversight from the Council on Environmental Quality (CEQ), prepare a National Environmental Policy Act (NEPA) Programmatic Environmental Impact Statement (PEIS) assessing the cumulative impacts of drilling in the Marcellus Shale formation in the Chesapeake Bay states and promulgate regulations based on the findings. The petition asserts: "Drilling for natural gas in the Marcellus Shale formation has significant impacts within the Chesapeake Bay states and to the 35 national park units that lie within or in the vicinity of the formation – and those impacts demand that action be taken by the federal government to determine the best way to protect human health and the environment."
Allison Torrence to Speak at Northwestern School of Law
By Allison A. Torrence
Allison Torrence will be speaking at Northwestern School of Law on April 5th, 2011, at a panel discussion about Careers in Environmental & Animal Law. Ms. Torrence will discuss her education and training in environmental law and take questions from law students eager to learn about practicing in the environmental law field. Ms. Torrence will also describe her work experience in the Environmental, Energy and Natural Resources Law Practice at Jenner & Block.