Environmental Law Insight

Updates and Analysis from Taft's Environmental Trial Lawyers

Changes in Leadership at the Indiana Department of Environmental Management

Bradley R. Sugarman Posted in Tips

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.

Fourth Circuit Holds That Seller of Used Transformers is Not Liable as “Arranger” Under CERCLA

E. Chase Dressman Posted in CERCLA / RCRA

The 4th Circuit Court of Appeals held that the seller of used transformers containing PCBs had no CERCLA “arranger” liability for PCB contamination caused by the buyer of the used transformers. Consolidated Coal Co. v. Georgia Power Co., 781 F.3d 129 (4th Cir. 2015). The Court held that the seller could not be liable as an “arranger” under CERCLA because it had sold transformers with commercial value and had not intended that the transformers be “disposed of” rather than beneficially reused.

The Consolidated Coal holding is an important example of the fact-intensive nature of determining “arranger” liability under CERCLA. The 4th Circuit’s ultimate holding and its focus on the arms-length nature of the subject sales demonstrate the types of transactions courts will examine with greater scrutiny when determining “arranger” liability.

Read more detail about this case in an article I recently published

PUCO’s Report Concludes Arlington Home Explosion Caused by Violation of Gas Pipeline Safety Rules

Devin Parram Posted in Compliance, Utilities

On July 24, 2015, the Public Utilities Commission of Ohio’s (“Commission”) staff filed a Natural Gas Pipeline Failure Investigation Report (“Report”) regarding a home explosion that occurred on March 21, 2015 in Upper Arlington, Ohio that caused an estimated $9 million in damages to approximately 20 properties and rendered a number of homes uninhabitable. The filing of this Report indicates that the explosion may have been caused by Columbia Gas of Ohio’s (“Columbia”) failure to properly remove an old gas line from service. The Report indicates that the old service line, although not being used, remained connected to an active main line and was not properly plugged or sealed. The Commission staff indicated in the Report that Columbia’s actions may constitute a violation of the Commission’s pipeline safety rules. It remains to be seen how Columbia will respond to this Report, what action the Commission will take and whether lawsuits will be filed against Columbia for damages caused by the explosion.

I recently published an article on this case with additional details of the Report and next steps.

Attempt to “Slice and Dice” Cleanup Costs Between CERCLA Sections 107 and 113 Rejected by Federal District Court

E. Chase Dressman Posted in CERCLA / RCRA

The U.S. District Court for the Eastern District of Michigan rejected a party’s attempt to “slice and dice” its cleanup costs between Sections 107 and 113 of the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”) in Ford Motor Co., et al. v. Mich. Consolidated Gas Co., et al., Case No. 08-13503, E.D. Mich. (Feb. 10, 2015). Citing existing case law, the court concluded that if a party is eligible to bring a Section 113 contribution claim, then that party can only bring a Section 113 claim and cannot separately pursue its allegedly “voluntary” costs under Section 107.

This decision is another important example of courts refusing to let a party re-characterize Section 113 costs as Section 107 costs. The case also illustrates the importance of the procedural posture of a case when determining whether a Section 107 or Section 113 claim is appropriate.

I invite you to read my recently published article discussing this case in more detail.

Sixth Circuit Court of Appeals Throws Out PM 2.5 Attainment Status for Cincinnati

Kim Burke Posted in Air

On July 14, 2015, the Sixth Circuit Court of Appeals ruled that the Sierra Club had standing to challenge EPA’s determination that the Cincinnati metropolitan area had reached attainment status for particulate matter (PM 2.5).  Sierra Club v. EPA, — F.3d —-, 2015 WL 4231713 (6th Cir. 2015).  After granting the Sierra Club the right to challenge, the court held that EPA had failed to implement “reasonably available control measures” applicable to non-attainment areas, and therefore vacated the EPA’s determination that the Cincinnati metropolitan area was in attainment for PM 2.5.  The court’s rejection of the attainment status was made notwithstanding the fact that the Cincinnati metropolitan area’s real time data showed that the National Ambient Air Quality Standard for particulates had been met.  The Sixth Circuit found that meeting the particulate standard was not enough.  EPA also had to implement reasonably available control measures under Section 107(d)(3)(E)(ii) of the Clean Air Act even if those measures were not necessary to meet the particulate standard.  In so holding, the Sixth Circuit reasoned in accord with recent U.S. Supreme Court holdings granting less deference to EPA in interpreting statutory provisions under the two-step test announced in Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842 (1984).

The Sixth Circuit’s decision places EPA and its state counterpart, Ohio EPA, in a quandary, namely, how to unring the bell and “fix” the prior failure to implement reasonably available control measures.  Should EPA require Ohio EPA to re-submit a state implementation plan that includes requirements for reasonably available control measures for particulates?  If so, how long must that approved plan be in place before the Cincinnati area can reapply for attainment designation?

The Sixth Circuit’s decision may not be the end of the judicial process.  The court disagreed with the conclusion of the Seventh Circuit Court of Appeals that the phrase “applicable implementation plan” could refer to a plan other than the pre-attainment state implementation plan.  The applicability of a different plan would likely have led to a different conclusion by the court.  This disagreement establishes a conflict among the circuit courts that could be accepted for review by the U.S. Supreme Court.

NIST Releases Guide for Manufacturers and Utilities on Securing Industrial Control Systems from Cyber-Attacks

William C. Wagner Posted in Tips

Manufacturers and utilities that incorporate widely-available, low-cost internet protocol devices into their industrial control systems are at an increased risk for cyber-attacks.  National Institute of Standards and Technology (NIST), which is responsible for developing information security standards and guidelines to protect the nation’s critical infrastructures, recently published the Guide to Industrial Control Systems (ICS) Security, NIST Special Publication 800-82, Revision 2, released May 2015. This publication provides guidance on how to secure Industrial Control Systems (ICS), including Supervisory Control and Data Acquisition (SCADA) systems, Distributed Control Systems (DCS), and other control system configurations such as Programmable Logic Controllers (PLC), while addressing their unique performance, reliability, and safety requirements.

I recently published an article on Taft’s Privacy and Data Security Insight blog describing the guide in more detail.

Ohio’s On-Going Battle Between Electric Utilities and Net-Metering Supporters

Devin Parram Posted in Utilities

The tension between net-metering advocates and electric utilities has increased with the popularity of rooftop solar. Net-metering is used to track the amount of excess electricity produced by small-scale, on-site, sources, such as rooftop solar panels, and credit owners of these resources for the excess electricity. In a number of states, electric utilities have argued to regulators and legislators that net-metering customers do not pay their fair share for use of the electric grid, which results in non-net-metering customers picking up the tab for the cost of maintaining the grid.

Ohio recently became a battleground in the dispute between supporters of distributed generation and electric utilities. This dispute is largely focused on the amount of credits net-metering customers receive and which customers are entitled to receive credits from utilities. The issues arose out of the Public Utilities Commission of Ohio’s (PUCO) revaluation of its net-metering rules. AEP Ohio filed an appeal to the Ohio Supreme Court challenging the commission’s revisions to the net-metering rules.

The appeal is still pending and it remains to be seen whether the Legislature will weigh in on the net-metering battle, or whether a potential modification to the net-metering rules will satisfy the interests of the various parties. I invite you to read an article I recently published that discusses AEP Ohio’s arguments in more detail.

EPA Releases Final Version of Clean Water Rule

Devin Parram Posted in Water

Yesterday, the EPA released the final version of the Clean Water Rule (CWR), which defines categories of water that are now subject to regulation without the need to perform a case-specific “significant nexus” determination. The EPA states that the primary purpose of the new rule is to limit the sometimes slow, confusing and costly process of determining whether a “water” is subject to EPA regulation under the Clean Water Act (CWA) on a case-by-case basis.

However, by limiting the confusing and costly case-specific “significant nexus” determination, the EPA now imposes an equally onerous burden on those seeking to demonstrate that their “waters” are not “waters of the United States.”

The CWR will go into effect on Aug. 28, 2015, and will be considered issued for purposes of judicial review as of 1 p.m. Eastern time on July 13, 2015. Industry, local governments and private developers will clearly be affected by these new rules. And, given the impacts and ambiguities discussed in an article I recently published, it is likely that the CWR will be immediately subject to judicial review.

U.S. EPA Issues New Vapor Intrusion Technical Guides: Highlights for Experienced Environmental Professionals

William C. Wagner Posted in Air

More than 12 years in the making, U.S. EPA recently issued two new technical guides for assessing and mitigating the vapor intrusion pathway: Technical Guide for Assessing and Mitigating the Vapor Intrusion Pathway from Subsurface Vapor Sources to Indoor Air and Technical Guide for Addressing Petroleum Contamination at Leaking Underground Storage Tank Sites.  You can read a summary of some of the key issues in the guides here.

Court Applies Volumetric Apportionment under CERCLA in lieu of Joint and Several Liability

Jeffrey Stemerick Posted in CERCLA / RCRA

 

In United States v. NCR Corp., a Wisconsin District Court held that recent 7th Circuit guidance in the wake of Burlington Northern & Santa Fe Railway, Co., v. United States, required a volumetric apportionment of NCR Corporation’s liability under CERCLA for its contribution to PCB contamination in the Lower Fox River.  This case may signal a relaxation of the hesitancy to apportion harm under CERCLA and could allow PRPs to more frequently use estimates of the volume of their individual contributions to comingled contamination to avoid joint and severability under CERCLA — at least where volume can be reasonably linked to actual toxicity.

I invite to you read more about this case in an article I recently published.