U.S. EPA Adds Vapor Intrusion to the Superfund Hazard Ranking System, But Will It Last?

U.S. EPA Administrator Gina McCarthy signed the rulemaking to add Subsurface Intrusion (i.e., vapor intrusion and contaminated groundwater intrusion) to the Superfund Hazard Ranking System on Dec. 7, 2016. EPA issued a statement that it does not intend to systematically re-evaluate previously scored sites, but there is nothing to preclude the re-scoring of such sites to be eligible for the Superfund National Priorities List. Here are the links for the Federal Register Pre-Publication Notice, Frequently Asked Questions, and the Interim Subsurface Intrusion SCDM Values for Eligible Substances Table.

I fully expect EPA to continue to push new regulations before the Trump-Pence Administration takes office. However, on his first day in office as Governor, Mike Pence issued a “Regulatory Moratorium” ordering that all agencies suspend rulemaking action on any proposed rules for which a notice of intent to adopt a rule or other notice was not properly published before his first day as Governor. Executive Order 13-03. The purpose of the administrative-rulemaking moratorium was to “reduc[e] the regulatory burden [and] promote citizens’ freedom to engage in individual, family, and business pursuits [and] permit [the Office of Management and Budget] to devote resources to a comprehensive evaluation and rigorous cost benefit analysis of existing administrative rules.” It’s fair to expect that President Trump will issue a similar regulatory moratorium, especially given his announcement of Oklahoma Attorney General E. Scott Pruitt to lead EPA. Attorney General Pruitt is nationally well-known for what he has described as fighting EPA’s “leadership’s activist agenda and refusal to follow the law.”

$115,000 in Restitution and Guilty Plea to Resolve Asbestos Charges

2013 Investors LLC and two individuals recently pled guilty in Spokane County Superior Court to multiple violations of the Washington Clean Air Act. Another employee pled guilty in August and was sentenced to 60 days in jail.

The charges relate to renovations at the former 89-room Spokane House Hotel. Despite the presence of asbestos in the hotel, the defendants did not obtain the proper asbestos surveys or city permits to do their renovation work. Investigators became aware of the violations when one of them happened to drive by the hotel and observed the significant extent of the renovation. Investigators found piles of debris containing asbestos sitting out in the open air. Some of these debris piles were exposed to the open air for months, including during times when the area experienced high winds of over 40 miles per hour, which were capable of further spreading the asbestos fibers into the nearby community.

Not only does the enforcement action illustrate the importance of obtaining necessary state and local permits prior to renovation work involving asbestos, but also demonstrates the risk of significant project delays that can occur when contractors and sub-contractors are not adequately vetted or supervised to ensure they are complying with relevant regulations. While the customer may not be legally liable or responsible for its contractor’s violations, it may nonetheless be significantly impacted by project delays and unwanted publicity caused by its contractor’s violations.

You can read more about the case at the Washington State Office of the Attorney General website.

$900,000 Penalty and Felony Guilty Plea to Resolve Wastewater Dumping Charges

On Oct. 26, 2016, A&L Cesspool Service Corporation (A&L) pled guilty to charges in federal court in Brooklyn, New York for violating the Clean Water Act. A&L was alleged to have dumped waste removed from blocked sewer lines into manholes flowing directly into the Gowanus Canal and other waterways in New York City.

The Clean Water Act makes it a crime for anyone to knowingly dump pollutants into a waterway of the United States without a permit or in violation of a permit.  As one of the largest cesspool service providers in New York City, A&L held a permit from the New York City Department of Environmental Protection allowing it to dispose of liquid waste removed from sewer lines at designated wastewater treatment facilities. In violation of this permit, A&L employees were alleged to have repeatedly dumped liquid waste at other locations, including into various manholes throughout New York City.

The penalty and felony guilty plea are a reminder that regulated companies have a vested interest in adequately supervising and training employees to comply with environmental regulations.

You can read more about the case at the Department of Justice’s website.

EPA’s Environmental Justice 2020 Agenda Reflects the “Flint Effect”

EPA released its Environmental Justice 2020 Action Agenda on Oct. 27. The Agenda details EPA’s strategic plan for 2016-2020 to further implement and integrate “environmental justice” considerations into all of EPA’s programs. Much of EPA’s proposed Agenda appears tailored to respond to the recent drinking water crisis in Flint, Mich. The regulated community should take note of potential heightened scrutiny and enforcement by EPA in the areas identified in the proposed Agenda, including: (1) lead exposure; (2) drinking water contamination; (3) air quality; and (4) hazardous waste sites.

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Taft Welcomes Michael C. Mentel

Mentel_Mike_HiresTaft is pleased to announce that Michael C. Mentel has joined the firm’s Columbus office as a partner in the Environmental group.

Mike is the former Columbus City Council President and has represented a wide variety of clients in both private and public sectors for nearly 30 years. He focuses his practice in the areas of environmental law, renewable energy, regulatory compliance, government relations and contract law.

Read more here.

EPA Region 7 Reaches $112,684 Settlement with Albaugh, LLC for Alleged FIFRA Violations

EPA and Albaugh, LLC recently reached a $112,684 settlement to resolve allegations that Albaugh violated the Federal Insecticide, Fungicide and Rodenticide Act (“FIFRA”) by distributing pesticides that were misbranded and contained ingredients that did not match the products’ confidential statements of formulation. The significant penalty underscores EPA’s continued focus on pursuing pesticide registrants for violations of FIFRA – with a particular emphasis on noncompliant pesticide labels. Furthermore, the fact that the alleged violations were the result of a 2013 inspection of Albaugh’s St. Joseph, Missouri facility is a reminder to regulated entities that enforcement may occur years after a violation is discovered. Accordingly, maintaining relevant documentation and institutional knowledge after an inspection can be critical for responding to or defending a future enforcement action.

FIFRA prohibits the distribution or sale of misbranded pesticides. A pesticide is “misbranded” under FIFRA Section 2(q)(1)(A) if its labeling is false or misleading in any particular. This includes, among other things, when a pesticide’s label does not contain necessary directions for use (FIFRA Section 2(q)(1)(F)) and when a label does not contain a warning or caution statement which may be necessary to protect human health and the environment (FIFRA Section 2(q)(1)(G)). FIFRA Section 12(a)(1)(C) also makes it unlawful for any person to distribute or sell a registered pesticide which has a composition that is different than the composition in its confidential statement of formula.

Albaugh’s alleged violations were discovered during an inspection of Albaugh’s pesticide products that were fully packaged and ready for shipment. The inspector photographed product labels, collected certified copies of product labels, took samples of product for analysis, and reviewed and copied invoices for the sale and shipment of products. EPA later used these documents to substantiate its allegations against Albaugh.

A copy of the signed Consent Agreement and Final Order can be accessed here.

Coyote Ugly – Criminal Conviction for Unlawful Use of Pesticide Which Caused Coyote Deaths

On Sept. 27, 2016, Ted Nelson, Jr. was sentenced to eight months in custody with one year of supervised release upon payment of $2,500 in restitution following a two-day trial in April for alleged violations of the Federal Insecticide, Fungicide and Rodenticide Act (“FIFRA”). The conviction arose from allegations that between Jan. 1, 2015 and May 12, 2015, Mr. Nelson knowingly and with wanton disregard for the consequences of his actions, injected the restricted use pesticide Carbofuran (aka Furadan 4F) into the carcasses of cows in order to kill predators, including coyotes. The pesticide used by Mr. Nelson was extremely toxic to wildlife and its label strictly prohibited it from being used for baiting purposes. Several animals, including coyotes and an adult Bald eagle, were killed as a result of ingesting Carbofuran-tainted carcasses.

This case underscores an oft-overlooked fact about FIFRA – that it not only regulates the manufacture, sale or distribution of pesticides, but also governs the use of pesticides and strictly prohibits the use of any pesticide by any person in a manner inconsistent with the pesticide’s label.

You can read more about the case in the Department of Justice’s press release, accessible here.

Recent Sierra Club v. Dominion Power Lawsuit Could Open the Flood Gates for Clean Water Act Citizen Suits

The U.S. EPA’s National Pollutant Discharge Elimination System (“NPDES”) program is the cornerstone of Congressional efforts to reduce water pollution from point source discharges. This year marks the 44th anniversary of the 1972 Clean Water Act Amendments, which first established the NPDES program, but after all these years the scope of the program is still a source of constant litigation. One of the most recent and significant lawsuits to address the scope of the NPDES program is Sierra Club v. Virginia Electric and Power Company [d/b/a Dominion Virginia Power], No. 2:15-cv-00112, which is currently pending in federal court in the Eastern District of Virginia. This case and a series of similar recent lawsuits throughout the country have the potential to greatly expand the NPDES program and the type of discharges that must be permitted.

The Dominion court held a four-day bench trial in June of this year, and the court could issue a decision any day now. Although the court’s decision would not apply in other jurisdictions, the outcome will be important to watch for several reasons:

  1.  This is not an isolated lawsuit. There have been several other citizen suits in just the last few years alleging that discharges to groundwater have violated the Clean Water Act. It is entirely conceivable that there will be more citizen suits addressing this issue in the near future.
  2. The 4th Circuit has not yet addressed whether the NPDES program governs groundwater seeps. And if the court’s ultimate decision in Dominion is appealed to the 4th Circuit, the 4th Circuit could create a split with the other Courts of Appeals that only the U.S. Supreme Court could resolve.
  3. Although the Dominion lawsuit involves disposal facilities for CCR, the principles at issue could easily be applied to other types of landfills, lagoons and surface impoundments that many industrial operations utilize.

I recently published an article with more background and detail on Sierra Club v. Dominion.

Superfund Environmental Contamination Case Recently Reversed by 8th Circuit

The 8th Circuit Court of Appeals recently reversed class certification in Ebert v. General Mills, Inc. involving alleged environmental contamination. The decision highlights the complexities faced in putative class action toxic tort cases, especially those involving vapor intrusion. Ebert stresses the fact that causation, liability and damages determinations are not only inextricably linked, but also that these concepts often involve highly individualized assessments that may not be suitable for resolution in class actions.

I recently published an article on this decision with more background and detail on this decision.

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