Taft Environmental Attorney Bilott Featured in New York Times Magazine Article

Taft Environmental Partner Rob Bilott is featured in the New York Times Magazine article “The Lawyer Who Became DuPont’s Worst Nightmare,” which covers his work to hold DuPont accountable for the harm caused by its release of the toxin PFOA (“C8”) in and around Parkersburg, W.Va. Rob has been fighting DuPont for the last 16 years, during which time DuPont settled the class-action suit, and is currently prosecuting the second of 3,535 personal-injury cases filed by members of the class.


Deveau Quoted in NWI Times Article

Deveau.Frank_hiresTaft Environmental partner Frank Deveau was quoted in the NWI Times article “Gary airport reaches landmark deal on cleanup,” which was published on Dec. 14. The article discusses the agreement that the Gary/Chicago International Airport has entered into with the Indiana Department of Environment Management (IDEM) to address historic contamination in the area. Frank, chair of Taft’s Environmental group, represented the airport during its negotiations with IDEM.

IDEM Issues New Nonrule Policy

On Nov. 13, the Indiana Department of Environmental Management (IDEM) issued Nonrule Policy Document No. MP-008-NPD to express its interpretation of the corrective action requirements under the federal Resource Conservation and Recovery Act (RCRA) and the parallel authority under Indiana law for subsequent owners of former hazardous waste treatment, storage or disposal facilities.

Notably, this Nonrule Policy does not change any corrective action requirements for any person or entity who applied for a permit to operate a hazardous waste facility, received such a permit, or should have applied for and received such a permit. As to those individuals, IDEM retains its authority to issue corrective action orders even after the facility ceases its operations. The Nonrule Policy is guided by the statutory language of RCRA and applicable cases deciding similar issues, of which I discuss in more detail in an article I recently published.

IDEM’s Nonrule Policy is an important step in the right direction for subsequent owners of former RCRA facilities in Indiana. Additionally, IDEM’s Nonrule Policy is also favorable for brownfield redevelopment, as there are no parallel bona fide prospective purchaser protections under RCRA to those found in CERCLA.

Kentucky Federal Court Approves Lone Pine Order

The United States District Court for the Eastern District of Kentucky recently approved a Lone Pine case management order in a class action lawsuit, Modern Holdings, LLC et. al v. Corning Inc., seeking to recover personal injury and property damages allegedly caused by environmental contamination. (Lone Pine orders derive their name from the unpublished 1986 decision of the Superior Court of New Jersey in Lore v. Lone Pine Corp.).

In Modern Holdings, the class plaintiffs sought to recover property and personal injury damages alleged from nearly 50 years of environmental contamination at a glass manufacturing plant. After pending for nearly two years with several procedural motions, including amendments to the complaint, this case had yet to complete the discovery stage. Following the issuance of a scheduling order that set dates for the case through trial, the defendants sought, and the magistrate judge granted, a Lone Pine order that limited discovery until the plaintiffs produced evidence that established the validity of their claims.

This case now places Kentucky in line with other jurisdictions that utilize Lone Pine orders as an effective case management tool, particularly in multi-party environmental claims lawsuits.

I recently published an article with further explanation on the order and invite you to read it here.

EPA’s National Enforcement Initiatives Review Process is Underway

EPA recently solicited public comments and recommendations regarding its National Enforcement Initiatives (NEI) for fiscal years 2017–2019. Selected by EPA every three years, the NEI are designed to focus federal enforcement resources on the most important areas of environmental non-compliance. The current NEI for fiscal years 2014–2016 are:

  1. Reducing air pollution from the largest sources;
  2. Cutting toxic air pollution;
  3. Assuring energy extraction and production activities comply with environmental laws;
  4. Reducing pollution from mineral processing operations;
  5. Keeping raw sewage and contaminated stormwater out of our Nation’s waters; and
  6. Preventing animal waste from contaminated surface and ground water.

EPA can choose to continue with any or all of the above NEI into the fiscal year 2017-2019 cycle, or alternatively, return any or all of them to the standard enforcement program. In addition to evaluating whether the current NEI should be continued or expanded, EPA is also considering adding three other initiatives to the NEI list. These new initiatives include:

  1. Protecting communities from exposure to toxic air emissions;
  2. Keeping industrial pollutants out of the nation’s waters; and
  3. Reducing the risks and impacts of industrial accidents and releases.

Read more about these new initiatives in an article I recently published.

CERCLA Divisibility: A Never-Ending Story

NCR Corporation’s long-running battle over the divisibility of harm caused by PCB contamination in the Lower Fox River took a strange twist on Monday when the district court reversed a previous decision apportioning the harm and instead found NCR jointly and severally liable. This reversal comes in a case already more drawn out than a Tolstoy novel. The lengthy history of the case—which includes two trips to the Seventh Circuit—is summarized in my previous article on the now-reversed district court decision.

At issue in the case was whether the harm caused by PCBs in the river could be apportioned among the many parties who contributed to the contamination. In its earlier ruling, the court determined that the Seventh Circuit permitted a simple apportionment based on volume. Thus, the court found the harm divisible and held NCR liable for only a percentage of the harm which it determined using an expert’s “ballpark” estimate of NCR’s volumetric contribution to the contamination.

In granting EPA’s motion for reconsideration, the court determined that the harm was not theoretically capable of apportionment because there was not sufficient evidence to determine which polluter contributed any certain percentage of PCB contamination to the river. The court further found that the expert’s opinion on which it previously relied was actually unreliable and did not provide a sound basis upon which to apportion the harm.

The court subsequently denied NCR’s request that the court reconsider its reconsideration. NCR has asked the court to certify the order for interlocutory review. Surely a third trip to the Seventh Circuit will follow.

Indiana Adopts USEPA’s New Vapor Intrusion Attenuation Factors

The Indiana Department of Environmental Management (IDEM) has approved the use of the vapor intrusion attenuation factors set forth in the US Environmental Protection Agency’s Technical Guide for Assessing and Mitigating the Vapor Intrusion Pathway from Subsurface Vapor Sources to Indoor Air and Addressing Petroleum Vapor Intrusion at Leaking Underground Storage Tank Sites.  The EPA guides were published in June 2015, and IDEM approved the use of the new attenuation factors on October 20, 2015.

The new attenuation factors are less restrictive than the old IDEM attenuation factors.  Under the old attenuation factors, a preferential pathway for vapor intrusion was presumed to exist if the sub-slab vapor contaminant concentrations exceed the indoor air vapor contaminant concentrations by a factor of 10.  Under the new protocol, a preferential pathway for vapor intrusion will be presumed to exist if the sub-slab vapor contaminant concentrations exceed the indoor air vapor contaminant concentrations by a factor of 33.  A table is provided below comparing the old and new attenuation factors for some common contaminants.

As a result of IDEM’s adoption of the new EPA vapor intrusion attenuation factors, property owners with subsurface contamination should be able to more easily demonstrate that impacted soil or groundwater does not warrant additional investigation to eliminate the pathway for vapor intrusion.

Taft Environmental Attorney Gardner to Present at Indiana Air & Waste Management Association Winter Technical Meeting


Will Gardner, Taft Attorney

Taft environmental attorney Will Gardner will present at the Indiana Air & Waste Management Association’s Winter Technical Meeting on Dec. 10. His presentation will be an update on the Waters of the U.S. (WOTUS).

Will focuses his practice on all of the major environmental acts and various other state environmental laws, with particular emphasis on air quality law.

Taft Environmental Attorneys to Speak at 2015 Indiana Environmental Conference

Four Taft environmental attorneys will present at next week’s 2015 Indiana Environmental Conference, sponsored by the Indiana Chamber of Commerce.

The conference, held Oct. 27-28 in Indianapolis, will include the following presentations:

  • Will Gardner will present “Startup Shutdown and Malfunctions under the Clean Air Act – Without the Affirmative Defense, What’s Next?”
  • Brad Sugarman and Jeff Stemerick will co-present “Environmental Compliance Programs – The Benefits and Pitfalls of Self-Auditing and Being Prepared to Handle Government Inspections.”
  • Bill Wagner will co-present “EHS Compliance Auditing and Cyber-Security: Land Mines to Avoid” with Douglas Zabonick from Patriot Engineering.

To register and learn more, click here.

Taft Hosts Environmental Seminar on Enforcement Liability

Please join us on Nov. 10 for a seminar on how to protect your company from environmental enforcement liability. Taft and SLR International Corporation will share their decades of experience by providing real-world and practical advice on how you can make a difference in avoiding and mitigating environmental enforcement actions. Topics include:

  • How to Avoid Notices of Violation.
  • How to Respond to Notices of Violation.
  • Benefits and Drawbacks of Self-Audit Policies.
  • How to Conduct Company Audits and Compliance Programs.
  • How to Negotiate with the EPA.
  • Criminal vs. Civil Liability.
  • What to Expect in Concluding Environmental Enforcement Actions.
  • Update on Recent Environmental Enforcement Activity.

This unique seminar blends Taft’s legal experience with SLR International Corporation’s environmental consulting experience to provide attendees with a comprehensive guide to managing environmental enforcement actions. This seminar is ideal for business owners, managerial employees and other key decision makers.

Taft’s Environmental Law Seminar:
Be the Hero: Protect Your Company From Environmental Enforcement Liability

Tuesday, Nov. 10, 2015 @ Taft Center – 425 Walnut Street, Cincinnati, OH
1:00-4:00 p.m.

Click here to register.