Teck Coal Ltd. fined $1.4 million for Toxic Release

Teck Coal Limited recently pleaded guilty to three counts of contravening the Canadian Fisheries Act in the Provincial Court of British Columbia.   The court ordered the company to pay a penalty of $1,425,000, which will be directed to the federal Environmental Damages Fund, and used for purposes related to the conservation and protection of fish or fish habitat or the restoration of fish habitat in the East Kootenay region of B.C.  Additionally, Teck Resources will post information regarding this conviction on its website.  As a result of this conviction, the company’s name will be added to the Environmental Offenders Registry.

Teck Coal’s Line Creek Operations is located in southeastern British Columbia.  On October 17th, 2014, enforcement officers from Environment Canada and Climate Change (ECCC) launched an investigation following a report that fish had been found dead in ponds connected to Line Creek which runs adjacent to the coal mining operation.  During the investigation, ECCC enforcement officers found that the effluent from the water treatment facility going into Line Creek was deleterious to fish.  Numerous dead fish were found in the Line Creek watershed as a result of this discharge, including Bull trout.  Bull trout are identified as a species of special concern in this area of British Columbia.

The company has a permit to discharge treated effluent into the Line Creek, however in the fall of 2014, there was a malfunction of the treatment system.  As a result, toxic levels of nitrate, phosphorus, selenium and hydrogen sulfates entered the Line Creek, subsequently killing over 74 fish.

Line Creek is identified by the Government of British Columbia as part of a “Classified Water” system.  This provincial classification means that the water system is seen to have a high fisheries value and it requires special fishing licenses.

Teck’s West Line Creek Active Water Treatment Facility cost $120 million to construct.  The facility treats up to 7,500 m3 (2 million gallons) of water per day – enough to fill three Olympic-sized swimming pools.  Selenium concentrations are reduced by about 96% in treated water, to below 20 parts per billion.  Nitrate concentrations are reduced by over 99% in treated water, to below 3 parts per million.

Teck’s West Line Creek Active Water Treatment Facility

Teck’s Line Creek operation produces steelmaking coal – also called metallurgical coal or coking coal — which is used to make steel.  The processed coal is transported by sea to the Asia-Pacific region and elsewhere.  The current annual production capacities of the mine and preparation plant are approximately 3.5 and 3.5 million tonnes of clean coal, respectively. Proven and probable reserves at Line Creek are projected to support mining at planned production rates for a further 23 years.

In-Situ Remediation of Tetrachloroethylene and its Intermediates in Groundwater

Researchers from Tianjin University in China recently released results from a study that showed the results of the use of an anaerobic/aerobic permeable reactive barrier at removing tetrachloroethylene (also known as “perc”) and its intermediates in groundwater.

The anaerobic/aerobic permeable reactive barrier (PRB) system that was tested consisted of four different functional layers and was designed to remediate PCE-contaminated groundwater.  The first (oxygen capture) layer maintained the dissolved oxygen (DO) concentration at <1.35 mg/L in influent supplied to the second (anaerobic) layer.  The third (oxygen-releasing) layer maintained DO concentration at >11.3 mg/L within influent supplied to the fourth (aerobic) layer.  Results show that 99% of PCE was removed, mostly within the second (anaerobic) layer.  The toxic by-products TCE, DCE, and VC were further degraded by 98, 90, and 92%, respectively, in layer 4 (aerobic). The anaerobic/aerobic PRB thus could control both PCE and its degradation by-products.

Photo Credit: US EPA

Tetrachloroethylene is a manufactured chemical that is widely used for dry cleaning of fabrics and for metal-degreasing. It is also used to make other chemicals and is used in some consumer products.

Tetrachloroethylene is present in the subsurface at contaminated sites, often as a result of its inappropriate disposal and release from dry-cleaning and degreasing facilities or landfills.

CERCLA Trumps As-Is Sales

By Steven L. Hoch, Attorney, Clark Hill

A federal court in Alaska assessed responsibility against the City of Fairbanks (City) for remediation costs found necessary to clean up property it previously owned.  The court concluded that the City should have mitigated the problem or at least warned the purchaser about the contamination, even though the property was sold “As-Is”.  Under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) liability is assessed without reference to cause.  Further, the court said that numerous courts have held that CERCLA liability cannot be defeated by contract, unless specifically and clearly addressed in the contract language.

In Gavora, Inc. v. City of Fairbanks , Case No. 4:15–cv-00015-SLG, BL 256894 (D. Alaska July 25, 2017), the City owned two parcels of land and Gavora held leasehold on one of the parcels. For a considerable length of time, a dry cleaning business operated in the shopping center located on their parcel.  Eventually, the contamination drew the attention of the State of Alaska, who told the City about the contamination and that they suspected the contamination migrated from that parcel to the other.  While the State did not verify the findings, the district court found it clear that the City knew or should have known that the first parcel was also contaminated.

Fairbanks Mall – Satellite Image showing borehole and monitoring well locations as well as PCE contamination levels

The City sold the first parcel to Gavora on an “As-Is, Where-Is” basis.  This sale occurred 10 years after the City first learned of the contamination on the second parcel.  When the purchase took place, Gavora did not perform its own environmental assessment.  Five years later, contamination was discovered on the first parcel owned by Gavora.  Lacking options, Gavora remediated the parcel and sued the City of Fairbanks for contribution.

Even though the sale was “As-Is”, the court nevertheless held the seller liable. Further, the court allocated 55% of the costs to the City and 45% of the costs to the current owner. The court rationalized that this allocation was appropriate because (1) the city knew or should have known of the contamination, yet failed to inform the purchaser; (2) the current owner made substantial corrective action efforts upon learning of the problem whereas the City took no action, and (3) it would be inequitable to hold the current owner responsible for contamination occurring prior to its master lease, but the court could not “effectively apportion the contamination”, but (4) the current owner would obtain a greater benefit than the prior owner from the remediation.

In the final analysis this case affirms that “As-Is” does not exculpate a seller from CERCLA liability, and that not disclosing contamination even when it did not make any representation to the contrary. As this was a district court opinion, it does not have significant legal value, but should not be dismissed out of hand when confronting similar issues.

 

This article was first published on the Clark Hill website.

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About the author

Steven Hoch has over 40 years of experience with both federal and state environmental laws and regulations in the context of permitting, regulatory proceedings, litigation, enforcement actions, water supply, public policy formation, and advice.  His work includes contamination of land and ground and surface water.  Steven has critical experience in the areas of environmental law and the federal and state Safe Drinking Water Acts, Title 23, water supply, and the mechanics of water distribution.  His experience also extends to groundwater modeling and water quality testing.  He also has significant experience in hazardous substances and waste handling practices, remediation, soil erosion, and claims of toxic exposures

Steven has in-depth experience working with numerous public water systems throughout the state.  He has also established a sterling reputation for his work with the Regional Water Quality Control Boards, the Department of Toxic Substance Control, and the United States Environmental Protection Agency both in the administrative and litigation.  His clients range from the country’s largest municipal water agency to individuals selling or buying contaminated sites.

Steven often takes primary roles in many environmental trials, and has served as liaison counsel for groups or parties at the request of fellow counsel.  He has been involved in several landmark cases, including acting as PG&E’s counsel in the case made famous by the movie Erin Brockovich.

 

The Ninth Circuit Reiterates That “Knowingly” Handling Hazardous Waste Without a Permit Is a General Intent Crime Under RCRA

By Richard E. Stultz

Max Spatig was convicted of knowingly storing and disposing of hazardous waste without a permit and sentenced by the U.S. District Court for the District of Idaho to 46 months in prison under 42 U.S.C. § 6928(d)(2)(A). See U.S. v Spatig (2017) 2017 WL 4018398.  At trial, Spatig had sought to introduce evidence on his diminished capacity arguing that he did not have the required state of mind for the offense.  The district court, however, granted the government’s motion in limine to exclude all such evidence because § 6928(d)(2)(A) under the Resource Conservation and Recovery Act (RCRA) only required general intent and diminished capacity was not a defense to a general intent crime.

For years, Spatig had operated a business which used paint and paint-related materials.  Over time Spatig had accumulated several used containers of this material, some of which ended up on his residential property in Idaho.  In 2005, the county discovered the several containers and reported it to the Idaho Department of Environmental Quality (DEQ). Working with Spatig, DEQ collected and destroyed most of the containers.  In 2010, Spatig was again found to be storing used containers of paint and paint related materials on another of his properties.  This time the job was too big for local or state authorities so the U.S. Environmental Protection Agency (EPA) was notified.  The U.S. EPA determined that the waste was hazardous and that a cleanup was necessary. The U.S. EPA removed approximately 3400 containers and spent $498,562 on the cleanup.  The EPA charged Spatig with violation of § 6928(d)(2)(A) for knowingly storing and disposing of a hazardous waste without a permit from either DEQ or the U.S. EPA.

Paint cans at a property off the Archer-Lyman Highway near Rexburg, Idaho

Spatig appealed his trial conviction and argued on appeal that § 6928(d)(2)(A) required specific intent.  He also took issue with the district court’s enhancement of his base sentence arguing that the cleanup did not result in a “substantial expenditure.”  The Ninth Circuit Court of Appeals, however, disagreed with Spatig and affirmed the district court.

Under § 6928(d)(2)(A), a person may not “knowingly” treat, store or dispose of a hazardous waste without a permit.  According to the U.S. Supreme Court, “‘knowingly’ merely requires proof of knowledge of the facts that constitute the offense.”  The Ninth Circuit had also held that “knowingly” generally does not require specific intent.  In other words, a defendant’s particular purpose or objective is not required.  The Ninth Circuit previously rejected the argument that § 6928(d)(2)(A) required that a defendant know there was no permit for disposal.  The court held there that “knowingly” only required “that a defendant be aware that he is treating, storing, or disposing of something that he knows is hazardous.”  The court found that RCRA was a public-welfare statute and that “§6928(d)(2)(A) fits within a class of general-intent crimes that protect public health, safety, and welfare.”  Because § 6928(d)(2)(A) only requires general intent, the Ninth Circuit upheld the district court’s exclusion of evidence at trial of Spatig’s state of mind.

Spatig argued that his sentence enhancement was error because the cleanup did not constitute a “substantial expenditure” required under the federal sentencing guidelines (U.S.S.G. § 2Q1.2(b)(3)).  The Ninth Circuit refused to establish a bright-line rule but noted that sister circuits had found that expenditures under $200,000 were “substantial.”  In upholding the district court, the Ninth Circuit noted that in the instant case the $498,562 underestimated the total cost because it did not include the local agencies’ expenditures.

This holding underscores the long-standing general purpose of environmental laws to protect the public welfare. These statutes do not generally require specific intent—only knowing of the act is required.

This article was first published on the Clark Hill website.

_________________

About the author

Richard E. Stultz brings over eighteen years of experience in the environmental, land development and petroleum industries to bear in his practice of law. In addition to his law degree, he also earned a Bachelor of Science in Petroleum Engineering. Richard’s practice is currently focused on environmental litigation.

Richard is experienced in law and motion filings and hearings. He is practiced in written discovery and legal research. Richard has even co-written a First Amendment argument submitted before the California Court of Appeal. He is familiar with California’s environmental laws and regulations.

While in law school, Richard interned at the Los Angeles City Attorney’s Office in the Real Property/Environment division. He researched and prepared a key memorandum regarding good will compensation in eminent domain.

Tribunal gives Ontario Environment Ministry Broad Preventative Powers over Migrating Contamination

by Stanley D. Berger

On September 1, 2017, the Ontario Environmental Review Tribunal in the matter of Hamilton Beach Brands Canada Inc. et al. v. the Director, Ministry of the Environment and Climate Change made a preliminary ruling that the Director had jurisdiction to make an order under s.18 of the Environmental Protection Act (EPA) requiring a person who owns or owned, or has or had management or control of a contaminated undertaking or property to delineate contamination that had already migrated to off-site properties. The property in question, formerly a small-appliance manufacturing business, was contaminated and the various contaminants were of concern to the Ministry, having migrated to other Picton residential, commercial and institutional properties where they might be entering nearby buildings by vapour intrusion. Section 18 of the EPA provides that the Director may make orders preventing, decreasing or eliminating an adverse effect that may result from the discharge of a contaminant from the undertaking or the presence or discharge of a contaminant in, on or under the property. The Director’s Order was challenged on three grounds:

  1. The adverse effect the Director could address was limited to a future event or circumstance (given that s.18 is prospective and preventative);
  2. The adverse effect had to relate to the potential off-site migration of a contaminant that was on an orderee’s property at the time the order was made;
  3. The order could require work only on site but not off-site, to address the risk of an adverse effect.

The Tribunal rejected all three arguments, reasoning that adverse effects resulting from contamination were frequently ongoing rather than static, with no clear line between existing and future effects. The Tribunal looked to the purpose of the EPA which was to protect and conserve the natural environment and found the orderees’ arguments were inconsistent with this purpose. Contamination and adverse effects were not constrained by property boundaries and therefore it was immaterial whether the contaminant was on the orderee’s property at the time the order was made. Finally, the list of requirements that could be ordered under s.18(1) EPA included off-site work. _________________

About the Author

Mr. Berger has practiced regulatory law for 36 years. He is a partner at Fogler Rubinoff LLP. He is certified by the Law Society of Upper Canada as a specialist in Environmental Law. He represents nuclear operators and suppliers in regulatory and environmental matters and in the negotiation of risk clauses in supply contracts and government indemnity agreements.He has prosecuted and defended environmental , occupational health and safety and criminal charges . He represents clients on access to information appeals before Ontario’s Freedom of Information Commission. He has also represented First Nations seeking equity partnerships in renewable energy projects. He started as an Assistant Crown Attorney in Toronto (1981), became the Deputy Director for Legal Services /Prosecutions at the Ministry of the Environment (1991) and Assistant General Counsel at Ontario Power Generation Inc.(1998-2012) During his 14 years at OPG, Mr. Berger won the President’s Award for his legal contribution to the Joint Review Panel environmental assessment and licensing hearing into the Nuclear New Build Project for Clarington . He won a Power Within Award for his legal support of the Hosting Agreement with local municipalities for the project to create a long term deep geologic repository for low and intermediate nuclear waste in Tiverton, Ontario.

 

Canadian company fined $100,000 for contravening dry-cleaning regulations

Recently, Dalex Canada Inc., located in Concord, Ontario, pleaded guilty in the Ontario Court of Justice to one count of contravening the Tetrachloroethylene (Use in Dry Cleaning and Reporting Requirements) Regulations made pursuant to the Canadian Environmental Protection Act, 1999.  Dalex Canada Inc. was fined $100,000, which will be directed to the Environmental Damages Fund.  The Environmental Damages Fund is administered by Environment and Climate Change Canada. Created in 1995, it provides a way to direct funds received as a result of fines, court orders, and voluntary payments to projects that will benefit our natural environment.

Dalex Headquarters, Concord, Ontario

Environment and Climate Change Canada enforcement officers conducted inspections in 2014 and identified instances where tetrachloroethylene was being sold to owners and operators of dry-cleaning facilities who did not meet regulatory standards.  As a result of Environment and Climate Change Canada’s subsequent investigation, Dalex Canada Inc. pleaded guilty to selling tetrachloroethylene to an owner or operator of a dry-cleaning facility who was not in compliance with the regulations.  The regulations prohibit anyone from selling tetrachloroethylene to dry cleaners unless the dry-cleaning facility is compliant with certain sections of the regulations.

In addition to the fine, the court ordered Dalex Canada Inc. to publish an article in an industry publication, subject to Environment and Climate Change Canada’s approval.  Dalex Canada Inc. is also required to notify Environment and Climate Change Canada before resuming sales of the regulated product to dry cleaners. As a result of this conviction, the company’s name will be added to the federal Environmental Offenders Registry.  The Environmental Offenders Registry contains information on convictions of corporations registered for offences committed under certain federal environmental laws.

Tetrachloroethylene, also known as PERC, enters the environment through the atmosphere, where it can damage plants and find its way into ground water.

CHAR Technologies Ltd. Announces Approval of $1 Million Grant

CHAR Technologies Ltd. (the “CHAR”) (YES – TSXV) is pleased to announce that it has been approved for a grant totalling $1 million provided by the Government of Ontario through the Ontario Centres of Excellence (“OCE”). The grant is in support of CHAR’s current SulfaCHAR production project, which has previously received funding and support from both Sustainable Development Technology Canada (“SDTC”) and the Canadian Gas Association (“CGA”).

“This grant will allow CHAR to both redeploy financial resources currently committed to the SulfaCHAR project, while at the same time will allow CHAR to expand the scope of the project,” said Andrew White, CEO of CHAR. “The funding recognizes the carbon-related benefits of the project, and will allow CHAR to more rapidly execute on the production and use of SulfaCHAR.”

Funding will be disbursed on completion of three milestones. CHAR has received initial funding of $237,759, and will receive three additional payments on milestone and project completion.

About CHAR
CHAR is in the business of producing a proprietary activated charcoal like material (“SulfaCHAR”), which can be used to removed hydrogen sulfide from various gas streams (focusing on methane-rich and odorous air). The SulfaCHAR, once used for the gas cleaning application, has further use as a sulfur-enriched biochar for agricultural purposes (saleable soil amendment product).

About OCE
Ontario Centres of Excellence (OCE) drives the commercialization of cutting-edge research across key market sectors to build the economy of tomorrow and secure Ontario’s global competitiveness. In doing this, OCE fosters the training and development of the next generation of innovators and entrepreneurs and is a key partner with Ontario’s industry, universities, colleges, research hospitals, investors and governments. OCE is a key partner in delivering Ontario’s Innovation Agenda as a member of the province’s Ontario Network of Entrepreneurs (ONE). Funded by the Government of Ontario, the ONE is made up of regional and sector-focused organizations and helps Ontario-based entrepreneurs rapidly grow their company and create jobs.

Fine for Illegal Storage of PCBs

Recently in a Quebec court, Mr. Isaac Gelber pleaded guilty to three charges related to the illegal use/storage of PCBs and he was fined $25,500 under the Canadian Environmental Protection Act, 1999.

The investigation, led by Environment and Climate Change Canada, showed that Mr. Isaac Gelber had committed several violations to the Act, namely:

  • Using transformers containing polychlorinated biphenyls (PCBs) thereby violating the PCB Regulations;
  • Failing to comply with the environmental protection compliance order, issued by an officer in January 2013, to dispose of three (3) transformers containing more than 500 mg/kg of PCBs
  • Knowingly making false or misleading statements

Polychlorinated biphenyls (PCBs) used to be very popular in a wide range of industrial and electrical applications. They were excellent fire resistant coolants and insulating fluids in transformers, capacitors, cables, light ballasts, bridge bearings, and magnets, among many other things.  Unfortunately, they turned out to be persistent and toxic to humans and the environment. PCBs can:

  • Travel long distances and deposit far away from their sources of release
  • Accumulate in the fatty tissues of living organisms
  • Cause complications like cancer and birth defects
  • Potentially disrupt immune and reproductive systems and even diminish intelligence.

Amended PCB Regulations under the Canadian Environmental Protection Act, 1999 (CEPA), came into force on September 5, 2008. The new regulations set phase out dates for in –use PCB equipment, as well as rigorous labelling and reporting requirements.  They also require prompt and proper disposal of PCB equipment, once it is no longer in active use.

The Department of Environment and Climate Change enforcement officers conduct inspections and investigations under the Canadian Environmental Protection Act, 1999.  They ensure that regulated organizations and individuals are in compliance with environmental legislation.

 

What To Do If You Find An Underground Fuel Oil Tank In Your Backyard

Fuel oil leaks from underground storage tanks (“USTs”) into the soil and groundwater can result in environmental damage and significant costs to homeowners. Property owners should be proactive in addressing a UST upon discovery to minimize liability for potential damage arising from a UST.

Prior to the 1970s, fuel oil stored in USTs was a common method of heating homes and businesses in Ontario. In the 1970s, many property owners switched to natural gas as a heating source.1 Frequently, USTs were left in the ground, unbeknownst to subsequent property owners.

Property owners in Ontario are responsible for any USTs on their properties, whether the owner installed the UST or not. This responsibility may extend to investigating impacts arising from leaks or spills of fuel oil, as well as remediating resulting impacts to soil and groundwater.

Property owners should be aware of the significant consequences that may arise from a leaking UST, including

reduced property value
the Technical Standards and Safety Authority (“TSSA”) may require delineation and/or clean up of environmental impacts to soil and groundwater
regulatory action from the Ministry of the Environment and Climate Change (“MOECC”) where contamination migrates off-site, including prosecutions and Orders, and
lawsuits from neighbours if fuel oil migrates to neighbours’ lands.

So You Found A Tank. Now What?

If you discover a UST, you need to be diligent, take action and assemble your environmental team.

Consider retaining an environmental lawyer before taking any steps.

An experienced environmental lawyer will be able to assist you to retain, under legal privilege, a reputable environmental consultant to investigate and make recommendations about the UST and possible impacts to the subsurface.2

The environmental lawyer will also assist you to understand your legal obligations. There are various regulatory requirements that apply to both USTs and aboveground storage tanks, including the CSA-B139 Series-15 Installation Code for Oil-Burning Equipment, 2015, the TSSA’s Fuel Oil Code Adoption Document Amendment FS-219-16 dated April 4, 2016, and O Reg 213/01: Fuel Oil.3

Depending on the size of the UST, the regulatory requirements for small or large installations may be applicable. Age may also be an important consideration.

In the event that fuel oil from a UST has impacted your property or properties beyond, the environmental lawyer can assist you in determining next steps and explaining the legal risks and liabilities that you may face (including civil lawsuits and/or regulatory action by the TSSA, MOECC or others).

With the right environmental team, you can successfully navigate and mitigate the risks and liabilities associated with USTs.

Footnotes

1 “Evolution of Canada’s Oil and Gas Industry”, online http://www.energybc.ca/cache/oil/www.centreforenergy.com/shopping/uploads/122.pdf

2 The environmental consultant must be a Qualified Person, and only a licensed tank contractor may remove a UST. See Environmental Management Protocol for Fuel Handling Sites in Ontario TSSA EMP-2012, August 2012, s 4, and O Reg. 213/01: Fuel Oil, s 4.

3 O Reg. 213/01: Fuel Oil under the Technical Standards and Safety Act, 2000, S.O. 2000, c. 16.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Trump’s Enviro Law Impact May Not Be What Many Anticipate

Many posit a material decline in environmental enforcement and a retrenchment or reversal of environmental regulatory initiatives in the new Trump administration. Certainly, one would be prudent to consider that scenario and its implications, given the repeatedly expressed intentions to do just that, by both the president and his team before and after his inauguration.

We believe there are three concrete areas where activism and activity will be on the rise during the Trump administration, targeting a variety of environmental, public health and liability issues of considerable potential consequences to the regulated community, environmental practitioners and the public at large.

Specifically, we postulate that the next four years will see a significant increase in (1) litigation by environmental groups, (2) regulatory enforcement and other actions by multiple states, and (3) efforts by the plaintiffs bar to capitalize on what may be perceived broadly as a withdrawal of the federal government from engagement on matters of environmental protection and public health. Each of these forms of prospective activism is addressed below.

LITIGATION BY ENVIRONMENTAL GROUPS

Environmental nongovernmental organizations (ENGOs) have long established themselves as key players in matters of environmental public policy, regulation and enforcement. The successes of their efforts are far too numerous to count and too diverse to categorize summarily. At all levels of government, ENGOs have prevailed in litigation that has forced agencies to regulate, overturned permitting decisions, and enforced compliance against those in violation of environmental laws and regulations.

During the Trump administration, we would expect the ENGOs to focus their considerable fire power — with renewed vigor enhanced by growing memberships and contributions — in three discrete areas.

First, there is the well-traveled path of using the courts to obtain review and rejection of U.S. Environmental Protection Agency regulations deemed nonconforming with statutory mandates. Specifically, any number of the environmental “rollback” initiatives discussed publicly to date by those associated with the new administration or their allies in Congress will require the U.S. EPA to go through rulemaking under the Administrative Procedure Act.

More specifically, to rescind or amend many existing regulations, including those promulgated in the waning days of the Obama administration, rulemaking will be necessary. Those rules will, in turn, be subject to judicial review.

Many, though not all, U.S. EPA regulations or rulemakings are subject to judicial review before the D.C. Circuit. Its present political composition is seven active judges appointed by Democratic presidents and four active judges appointed by Republican presidents. Litigious ENGOs can thus anticipate a reasonable possibility of drawing a receptive three-judge panel when seeking to overturn Trump administration regulations that appear to the ENGOs to relax current standards, withdraw recent initiatives or otherwise make life easier for the regulated community at the expense of the environment, unless the administration can demonstrate, on the record, that its new policies are not arbitrary or capricious.

Making that demonstration, however, will take time (i.e., to amass a supportive administrative record), which may be contrary to the president’s style and methods to date, in which the deliberative process is eschewed in favor of speed. (For example, the president’s controversial ban on immigration from several predominately Muslim countries has been criticized not just on substantive/policy/legal grounds, but for the administration’s failure to (1) consult with key congressional leaders of its own party; (2) provide advance notice to its own top intelligence, U.S. Department of Homeland Security and U.S. Customs and Border Protection officials; and (3) take due care to draft an executive order with sufficient care, clarity and details). We predict that judicial review of EPA rulemakings will be a fertile area of environmental practice if that decision-making model persists.

Second, ENGOs can be expected to use litigation to force agencies to take regulatory action based on statutory requirements or past policy statements. A perfect example has been referred to as the “Numeric Nutrient Wars.” In 2008, five ENGOs sued the EPA to establish numeric nutrient criteria for the state of Florida, asserting that the EPA had a nondiscretionary obligation to establish such criteria under the Clean Water Act. The U.S. EPA, after initially opposing the ENGO suit, settled the litigation by agreeing to develop and propose the criteria. The U.S. EPA criteria were instantly challenged by the state of Florida, local governments and industry groups as arbitrary and capricious (and by the ENGOs as being insufficiently protective). A federal district court in Florida struck a portion of the rules, ordering the EPA to re-propose elements of the nutrient criteria.

Third, of course, are the opportunities provided by statute for citizen enforcement of compliance with environmental permits and regulations. Many federal statutes provide for such enforcement; and ENGOs have a long and often successful history of bringing these sometimes ready-made cases. For example, the Clean Water Act prohibits the discharge of pollutants into the nation’s waters, unless authorized and subject to a discharge permit that sets appropriate discharge limitations. The Clean Water Act imposes the responsibility of monitoring and reporting permit noncompliance upon the permit holders, requiring them to submit discharge monitoring reports (DMRs). Self-reported non-compliances in DMRs have served as the basis for numerous lawsuits by ENGOs over the years.

STATE ACTIVISM

It is widely anticipated that the state of California will take positions and actions in significant contrast to the loosening of environmental controls promised by the Trump administration. Leading officials in California have proudly laid claim to that role and course of action. For example, “Gov. Jerry Brown unleashed a full-scale attack on President Donald Trump, declaring California won’t give up a string of policies ranging from climate change curbs to immigrant-friendly laws.”

In some instances, actions by California to impose new or stricter requirements on the regulated community have had repercussions beyond the state’s boundaries. For example, the “check engine light” symbol in a vehicle is part of the on-board diagnostic (OBD) system, which, among other things, monitors a vehicle’s emissions control system to ensure it is working properly. Certifications of OBD systems now go through the California Air Resources Board instead of the U.S. EPA, mainly because CARB’s certification requirements are more stringent than those of the EPA. Certainly, it is reasonable to assume, given the politics now at play and the public statements of officials at the state and federal levels, that some in California will seek specifically to take legislative, regulatory enforcement, and other actions that will have transboundary consequences.

Notwithstanding some Californian’s boast to represent the front line in opposition to relaxation of environmental enforcement or regulation, the state is by no means the only jurisdiction to have a record of stricter regulation or to manifest the intention to so behave in the coming years. Twenty-one states have a Democratic attorney general. Attorney General Eric Schneiderman of New York, for example, has been outspoken about his intention to take on the new administration on environmental issues; he also issued a press release warning that he “stands ready to use the full power of his office to compel enforcement of our nation’s environmental laws.”

THE PLAINTIFFS BAR

It is neither a secret nor a reason for embarrassment that the plaintiffs bar will direct itself toward those litigations in which fees are readily recoverable, particularly where they may materially or vastly exceed litigation costs and investment. So, given past history and anticipated developments at the federal regulatory and enforcement level, where do we expect the plaintiffs bar to go? Again, we anticipate three principal avenues of intensified activity. First, plaintiffs’ lawyers can recover fees in many federal citizen suit enforcement actions to secure compliance with existing laws, regulations and permits. At the local and regional level, many organizations or plaintiffs’ firms with whom they collaborate may view this to be “low-hanging fruit,” in an era of lax enforcement despite self-reporting of noncompliance (e.g., publicly available DMRs).

Second, recent years have shown the plaintiffs bar to be creative in fashioning causes of action, damages theories and prayers for injunctive relief that coincidentally garner attorneys’ fees in attractive amounts in a wide variety of environmental protection and public health situation cases. These cases include anything from toxic mold, to fracking, to allegedly harmful chemicals such as polychlorinated biphenyls (PCBs).

Third and finally, the true “home run” swing for the plaintiffs bar resides in the field of toxic tort, where they have enjoyed both considerable successes and notable failures. The plaintiffs bar is not monolithic; plaintiffs lawyers pursue and accept representations for diverse reasons. For those for whom earning a fee is one source of motivation, there can be no disputing that a larger fee is more attractive than a smaller fee. Hence, the cases that yield the largest damages verdicts against which a contingency fee would be assessed are the most attractive, especially to the big players.

The prospect of diminished enforcement and regulatory retreat under the Trump administration would seemingly yield several attractive toxic tort opportunities for the plaintiffs bar. First, litigation against manufacturers or users of so-called “chemicals at risk” — i.e., those chemicals that have been tentatively, provisionally or newly identified as toxic or harmful to human health (by the EPA or other bodies), but exposure to which is continuing in certain circumstances at levels that are arguably harmful. The contention would be that lethargy or turnabouts by the U.S. EPA, in the face of past scientific findings or thesis, has allowed harmful exposure to injure populations of varied sizes, all of whom are entitled to damages. We do not credit the thesis nor address its merits as to any of a long list of chemicals that may become ripe for such litigation; we merely foresee that consequence to the U.S. EPA retreating from existing standards or pending initiatives in any number of its regulatory programs.

Second, under the Resource Conservation and Recovery Act and other laws, federal and state regulators and enforcement personnel have the authority to take sweeping and often unilateral action to abate “imminent and substantial endangerments” or serious hazards to human health and the environment. Query whether a cessation or reduction in the initiation of such enforcement at the federal level — either in fact or as a matter of perception — will widen the door to private litigation, sanctioned by federal statutes or arising under state law (common or statutory), to address identifiable hazards to local communities.

One disincentive in instituting such actions, at least for some plaintiffs lawyers, would be the inability to translate injunctive relief into compensable money damages for which attorneys’ fees would be derivative and lucrative. Consequently, one might theorize that the plaintiffs bar will seek to marry injunctive actions to abate imminent substantial endangerments with tort claims giving rise to potentially significant damages. For example, a citizen suit under RCRA is injunctive in nature, and courts have repeatedly rejected attempts to recover money damages. Some courts, however, have exercised supplemental jurisdiction over damages claims brought under state law that accompany the RCRA claim.

Finally, should the perception continue to grow that federal authorities are or will be too lenient in permitting decisions — e.g., allowing increased air emissions from permitted facilities, would that provide another opening to the plaintiffs bar? Challenges to permits and citizen enforcement, we predict, will undoubtedly test this thesis.

CONCLUSION

The Trump administration will no doubt seek many changes in law and policy vis-à-vis the environment. Advocates of many of these changes proclaim them to be aimed at reducing what they would characterize as over-regulation or overly zealous government enforcement. History (and science) have shown, however, that with every action, there is an equal and opposite reaction. Litigation by environmental groups, regulatory enforcement and other actions by the states, and private litigation by the plaintiffs bar will likely increase correspondingly, ushering in a new phase in the long saga of environmental protection, regulation and the importance of environmental law.

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This article was first published in Law360, a LexisNexis Company. It can also be found at website of Arnold & Porter Kaye Scholer LLP.

About the Authors

Lester Sotsky headed the Arnold & Porter Kaye Scholer LLP firm’s environmental practice from 2006 to 2015. He is a broadly experienced environmental litigator, handling multiple toxic tort, hazardous waste enforcement, Clean Water Act, appellate, and white collar matters. Mr. Sotsky has represented major corporations in virtually every major manufacturing and mining industry, as well as Native American Tribes and other stakeholders.

 

 

Andy Wang’s practice focuses on civil litigation on a wide array of national security, white-collar, and environmental matters. Mr. Wang received his Juris Doctorate, cum laude, from Harvard Law School, where he was President of the Harvard National Security and Law Association, Senior Articles Editor for the Harvard National Security Journal, and an oralist for an Ames Moot Court Semifinalist team. He graduated from Rice University, magna cum laude, with a Bachelor of Arts in Political Science and History.