Ear To The Ground

Lobbying firm source of forged opposition letters to House Global Warming legislation

A Washington lobbying firm, Bonner & Associates, has acknowledged being the source of forged anti-climate bill letters to a Virginia lawmaker purporting to be from a local NAACP chapter and a Latino advocacy group.  The lobbying firm blames a temporary employee who has allegedly since been fired.  However, the House Select Committee on Energy Independence and Global Warming will apparently investigate the matter to ascertain if the representations are correct, and if the forgeries were meant to commit a “fraud upon Congress.”  The letters were sent last month just before the House passed the legislation.  For more information on the story, see http://www.msnbc.msn.com/id/32243723/ns/us_news-environment/.

Fecal bacteria prevalent in water samples taken from California beaches

Prior posts have noted that sewer systems leak, often a lot; in my practice I have seen sewer systems that appear to loose as much as 1/3 (no kidding) of the sewage before it reaches the POTW.  Prior posts have also questioned the accuracy of EPA's method for calculating violations of standards for bacteria at beaches, and noted that sewer systems are often responsible for the spread of PCE contamination from dry cleaning establishments.

It is thus no surprise that fecal coliform is found in many groundwater and surface water samples taken in and about areas that use sewer systems to transport their sewage.  A just released study by the advocacy group NRDC noted that 10% of the water samples taken in the preceding calendar year (2008) had levels of fecal coliform in excess of standards, and that this was a 4% increase over 2007.  Given the questions raised in prior posts about the data and the calculation of violations, I would not be surprised if the figures for both years were on the low side.

A media report about the study insofar as California is concerned can be found at http://www.latimes.com/news/local/la-me-beaches29-2009jul29,0,6684628.story.  The study itself, which addresses the issue nationally, can be found at http://www.nrdc.org/water/oceans/ttw/titinx.asp.

Federal judgment may collaterally estop re-litigation of the same action in state court, rules California Supreme Court

In a case which has application to environmental and toxic tort cases, by analogy, the California Supreme Court in Hernandez v. City of Pomona (2009), 46 Cal.4th 501, held that a Federal judgment may operate as collateral estoppel to preclude re-litigation of the same issues in a subsequently filed state court action.  In Hernandez, the plaintiff filed and lost a 1983 action in Federal court; he subsequently filed a wrongful death action in state court, based on the same set of facts.  The California Supreme Court applied collateral estoppel under this circumstance.

It is rare for environmental and toxic court cases in California to not include, if applicable, both Federal and State causes of action in the original complaint.  However, this case notes the risk of not so proceeding, and attempting to address Federal and state causes of action sequentially.

[For the sake of full disclosure, I should note in passing that the City of Pomona is a client of mine.]

Consistent with various rulings by federal courts, California's Court of Appeal holds that service on a foreign corporation is effective by serving the American subsidiary as the "manager"; the Hague Service Convention need not be followed

To say that the Hague Service Convention is a pain when it comes to serving a foreign company is an understatement.  It greatly slows a case because of the time consuming manner of service dictated by the Hague Service Convention.  Consistent with numerous rulings by Federal courts in the 9th Circuit, California's Court of Appeal in Yamaha Motor Co. Ltd. v. Superior Court (2009), 174 Cal.App.4th 264, held that service upon an American subsidiary of a foreign corporation is sufficient.  The Court did note, however, that such service may impair the ability of the party to execute abroad on any judgment obtained.

I should note in passing that the 9th Circuit permits service of a foreign corporation by Federal Express as long as the country in which the corporation is located has not opted out of the service-by-mail provision of the Hague Service Convention.  Thus, parties that seek to circumvent the Hague Service Convention's more traditional modes of service may wish to consider serving both the U.S. subsidiary and, if permitted, serving the parent by FedEx, especially given the cost savings.

Summary judgment cannot be subject to stipulation, rules California Court of Appeal

Occasionally, as a vehicle to get a case before an appellate court, especially when the sole question is one of law (not fact), parties will stipulate to a summary judgment in the trial court.  Following cases noted in prior posts, the Court of Appeal in Magana Carthcart McCarthy v. CB Richard Ellis, Inc. (2009), 174 Cal.App.4th 106, held (2-1) that a trial court may not grant summary judgment by stipulation unless the procedural requirements of Section 437c Code of Civil Procedure are followed.  This case follows in the footsteps of prior opinions that have held, consistent with California law, that explicit statutory requirements trump stipulations or other attempts to modify statutorily mandated procedural requirements.

Revivor of corporate powers can be applied retroactively, rules California appellate court

The general rule in California is that a corporation that is suspended (e.g., failure to file corporate tax returns) cannot file suit or a "responsive pleading" (e.g., answer, demur).  In Center for Self-Improvement v. Lennar Corp. (2009), 173 Cal.App.4th 1543, the plaintiff was suspended at the time that it gave notice under Prop. 65, a prerequisite to filing a lawsuit.  The trial court granted judgment for defendant on the grounds that plaintiff lacked standing.  The Court of Appeal reversed.  The Court noted that under Section 23301 Revenue & Tax Code, once deliquencies are corrected, revivor of the corporate status occurs "without prejudice to any action, defense, or right which has accrued."  The Court found that the revivor operates retroactively, thus validating the notice.

It is for this reason that any party seeking to disqualify an opposing party in an environmental or toxic tort or Prop. 65 action usually waits until the last moment (e.g., eve of trial) to raise the issue so that the opposing party lacks the time needed to correct the error.

California's Air Resources Board considering amendment to indoor air cleaner regulations

You may have seen the infomercial from Sharper Image for their indoor air cleaner; the loss of that market is credited with driving Sharper Image into bankruptcy.  One of the key reasons for the sales loss was that the company was sued by various plaintiffs because they failed to disclose that the air cleaner produced ozone as a byproduct of its operations; ozone can have an adverse effect on lung tissue.

In 2007, the Air Resources Board adopted a regulation banning the sale of air cleaner devices that produced ozone in excess of 0.050 ppm ozone; the regulation was prompted by AB 2276, which was signed into law in 2006 and required a regulation be enacted by the end of 2008 [see http://www.leginfo.ca.gov/pub/05-06/bill/asm/ab_2251-2300/ab_2276_bill_20060929_chaptered.html].  The ARB has proposed to amend the regulation.

The amendments will extend the compliance deadline to October 2010.  Because so few facilities were available for testing and certification, the regulation will expand the number of facilities available for testing products.  The ARB is also considering refining the test protocol, and clarifying the exemption for induct systems.

For more information, see http://www.arb.ca.gov/research/indoor/aircleaners/aircleaners.htmd.

The Coeur d'Arlene gold mine tailings case is apparently far from over

Prior posts have noted the litigation that has been involved in the Coeur d'Arlene gold mine tailings case from Alaska.  As noted, the 9th Circuit ruled in favor of plaintiffs while the U.S. Supreme Court ruled in favor of the mine on the permit issue.

 

Now, however, EPA is asking the Army Corps of Engineers to take yet another look at the matter.  In a letter dated July 14, 2009, according to press accounts, EPA acting Deputy Regional Administrator Michael Gearheard has requested an eight-month review process, which would prevent work on the mine from taking place this summer.  According to the press accounts, Gearheard said that new information had come to light since the last time the Corps looked at Coeur's disposal of mine tailings, and that the Corps was therefore legally obligated to analyze it.  For example, a 2004 environmental impact statement specified a 2,000 ton a day operation, but the actual mill capacity is about 1,250 tons.  Of greater import, I would think, is that Coeur apparently excavated an area near the lake and exposed some sulfide-bearing rock, which resulted in unauthorized acid rock drainage; apparently prior environmental assessments have failed to take the potential for acid drainage into account [California's Sierra Mountains have a number of old mines with horrendous acid-drainage problems, a problem that is proving most difficult to assauge].  EPA’s position in the past has been that disposal of the tailings on land, which is more costly but is the preferred method of environmentalists involved with the permitting of the operations at the site, may have less environmental impact than the in-lake disposal method favored by the mine.

As I frequently tell clients, it often pays to try and work things out with regulatory agencies because in the long run you often save money.  Coeur decided to fight, and though it won the permit battle, it still is at risk of losing the war.  Stay tuned.

Researchers argue that FDA's risk assessment re lead in women's and children's "vitamins" is flawed

Numerous prior posts have noted the ever expanding body of research that finds the adverse human health effects of lead arise from lower and lower concentrations and exposure.  One of the sources of lead about which most individuals appear to have little knowledge is "vitamins" (actually, it is the calcium in multivitamin-mineral combinations and standalone calcium products).  Even in California, where calcium pills were sued almost a decade ago under Prop. 65, if one reviews the settlements entered into in the litigation one sees that so-called "lead free" calcium supplements are far from it because manufacturers are allowed a pass on certain concentrations of lead.  The rationale for this pass is that the lead is "naturally occurring", but as I have noted in the past re Prop. 65, it really does not matter if a toxicant is naturally occurring or artificially added, the adverse health impact is the same.  This illusion should not be maintained, particularly for a substance as harmful as lead.

Of course, the FDA level for "safe" amounts of lead is much higher than even the above criticized amounts permitted under California's Prop. 65.  In a recent paper, researchers argue that FDA's underlying assumptions re lead are flawed for several reasons (including that the FDA failed to account for the multiple sources of lead to which the population is exposed), and thus urge revision of the allowable amounts for "vitamin" and mineral supplements. 

The paper can be found at http://www.ehponline.org/members/2009/0900573/0900573.html. 

Human cases of West Nile Virus may be reflective of weather patterns in U.S., and thus global warming may enhance the spread of the disease

There is some evidence which suggests weather may have played a role in the rapid spread of West Nile virus across the U.S., Canada, and Central America following its detection in New York City in 1999.  A team of U.S. and Canadian researchers has looked more comprehensively at the evidence by analyzing a spectrum of weather factors for climatically diverse states, and found several significant links with the incidence of human West Nile Virus (WNV) cases.  The analysis was based on 16,298 WNV cases reported to the Centers for Disease Control from 2001 to 2005, as well as year-round temperature, precipitation, and dew point data from 351 weather stations in close proximity to the infected people.

 

A 12°F increase in maximum daily temperature was associated with a 45–72% increase in WNV case reports within a 1-month period.  Precipitation was also associated with WNV, which increased 29–66% in association with a single-day rainfall of at least 50 mm within 3 weeks of diagnosis.  Smaller amounts of precipitation were associated with smaller increases in WNV cases, consistent with a related effect.  Increases in cumulative weekly precipitation and mean weekly dew point temperature (a measure of relative humidity) were also associated with an increase in WNV cases.

 

The findings, which appear to have validity across season and location, generally agree with what is known about the biology of WNV, humans, mosquito vectors, and bird reservoir hosts. The researchers note that additional research will be needed to address some limitations of their work, specifically gaps in data from a number of geographic regions and the influence of localized interactions of factors such as bird populations, vegetation, mosquito control efforts, and acquired immunity in both humans and animals.  If these weather–disease links are confirmed, and if climate changes in North America unfold as predicted with increases in temperature and precipitation, this type of research and understanding may assist public health officials with the prevention or mitigation of WNV outbreaks in the future.

 

The study can be found at http://www.ehponline.org/members/2009/0800487/0800487.html.