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 (Lone Pine orders derive their name from the unpublished 1986 decision of the Superior Court of New Jersey in Lore v. Lone Pine Corp.).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 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:
- Reducing air pollution from the largest sources;
- Cutting toxic air pollution;
- Assuring energy extraction and production activities comply with environmental laws;
- Reducing pollution from mineral processing operations;
- Keeping raw sewage and contaminated stormwater out of our Nation’s waters; and
- 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:
- Protecting communities from exposure to toxic air emissions;
- Keeping industrial pollutants out of the nation’s waters; and
- Reducing the risks and impacts of industrial accidents and releases.
Read more about these new initiatives in an article I recently published.
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.
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.
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.
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.
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
Click here to register.
In Louisiana Generating LLC v. Illinois Union Insurance Co., a federal district court ruled that costs incurred by an electric utility under a settlement with the EPA for measures in lieu of work to bring the utility into compliance with the Clean Air Act were recoverable from the utility’s liability insurer. The case arose after resolution of an EPA enforcement action against Louisiana Generating to redress air emissions from the utility’s Big Cajun II power plant. Although the alleged emissions were from Units 1 and 2 of the plant, Louisiana Generating settled EPA’s claims by taking various actions other than bringing Units 1 and 2 into compliance. In particular, the utility agreed to install emission-reducing technology at Unit 3 of the Big Cajun II plant, to surrender its emission allowances for the entire plant, and to undertake certain “mitigation projects” unrelated to the plant, such as funding efforts by the National Park Service to address air pollution.
It remains to be seen how influential this decision will be on other cases, particularly those outside Louisiana, in which utilities or other manufacturers seek reimbursement from their insurers for costs they incur to reduce discharges to the environment. On one hand, even under the holding of this case, costs to bring a facility into compliance with requirements imposed by law will likely not be recoverable. But this court’s holding that costs to reduce future discharges that are not necessary to achieve compliance may be covered by liability insurance could have far-reaching implications. At the least, it should make insurers hesitant to refuse coverage for such costs out of hand.
I invite you to read more about the case in an article I recently published.
Earlier this summer, the United States Court of Appeals for the District of Columbia Circuit issued a decision granting in part and denying in part petitions for review of a final rule promulgated by the United States Environmental Protection Agency (EPA) that set operating parameters for emergency generators. Del. Dep’t of Natural Res. & Envtl. Control v. EPA, 785 F.3d 1 (D.C. Cir. 2015). The rules are titled “National Emissions Standards for Hazardous Pollutants (NESHAP) for Reciprocating Internal Combustion Engines (RICE)” and “New Source Performance Standards for Stationary Internal Combustion Engines.”
I invite you to read an article that I recently published with more detail on the ruling.
Yesterday, Governor Mike Pence announced that Carol Comer will serve as Commissioner of the Indiana Department of Environmental Management (IDEM), effective August 28, 2015. She is currently the Chief of Staff to the current IDEM Commissioner Tom Easterly, who announced earlier this summer that he would retire.
Before becoming Chief of Staff, she served at IDEM as General Counsel, where she oversaw approximately thirty attorneys and support staff. Previously, she served as a senior administrative law judge for the Indiana Board of Tax Review and as an Administrative Law Judge with the Indiana Utility Regulatory Commission.
In addition to appointing Comer, Governor Pence also announced that Bruno Pigott will serve as IDEM’s new Chief of Staff. He currently serves as Deputy Chief of Staff and Assistant Commissioner in the Office of Water Quality, where he has served since 2005. Previously, Pigott served as Chief of the Permits Branch and as Chief of the Compliance Branch in the Office of Water Quality.