Ear To The Ground

U.S. Supreme Court notes that compliance orders are reviewable before action has to be taken

Until a couple of weeks ago, the lower Federal courts generally held that an entity subject to a compliance order had to implement the actions required before being in a position to challenge the order and perhaps seek reimbursement for unnecessary expenditures.  Not so anymore.

The EPA issued a compliance order which accused the landowners of depositing fill materials on a residential lot they owned, stated that the owners engaged in the discharge of pollutants into a navigable waterway without a permit, in violation of § 301 of the Clean Water Act, 33 U.S.C. Section 1311, and directed the owners to restore the site in accordance with an EPA-created restoration work plan.  The EPA denied the owners' request for a hearing, and the owners sued the EPA, claiming that the EPA acted arbitrarily and capriciously in violation of 5 U.S.C. Section 706(2)(A), and violated their right to due process of law, when it issued the compliance order.  Like most environmental laws, the penalty for not implementing the compliance order is very large under the CWA (may not "exceed [$37,500] per day for each violation."  21 U.S.C. Section 1319(d)).

The landowners sought declarative and injunctive relief, but the District Court dismissed the claims for want of subject-matter jurisdiction.  The Ninth Circuit affirmed, concluding that the Clean Water Act precluded pre-enforcement judicial review of compliance orders and that such preclusion did not violate due process.  On appeal, the U.S. Supreme Court unanimously disagreed.

The Court, at 2012 U.S. LEXIS 2320, found that the APA provides for judicial review of "final agency action for which there is no other adequate remedy in a court."  5 U.S.C. Section 704.  The compliance order here has all the hallmarks of APA finality.  Through it, the EPA determined rights or obligations, and required the landowners to restore their property according to an agency-approved plan and to give the EPA access. The Court also found that legal consequences flow from the order, which, according to the Government's litigating position, exposes the landowners to double penalties in future enforcement proceedings. The order also severely limits their ability to obtain a permit for their fill from the Army Corps of Engineers per 33 U.S.C. Section 1344 and 33 C.F.R. Section 326.3(e)(1)(iv). 

Further, the order's issuance marks the consummation of the agency's decisionmaking process for the EPA's findings in the compliance order were not subject to further agency review.  The landowners also had "no other adequate remedy in a court," as required by 5 U.S.C. Section 704.  A civil action brought by the EPA under 33 U.S.C. Section 1319 ordinarily provides judicial review in such cases, but the landowners could not initiate that process.  Each day they failed to implement the order, additional potential liability accrued.  The Court also found that applying to the Corps of Engineers for a permit and then filing suit under the APA if that permit is denied also does not provide an adequate remedy for the EPA's action.

Overturning case law that the lower courts have followed for years, the Court found that the CWA is not a statute that "preclude[s] judicial review" under the APA.  Instead, the APA was seen as creating a presumption favoring judicial review of administrative action.

 

Do homeowners policies protect against liability from fracking operations? Probably not

My partner Dean Pappas and I recently had an article published by Best's Review (February 2012) that looks at the potential risks that arise from hydrofracking operations, and the extent to which a typical homeowner's insurance policy covers the damages and harms that may arise. For those of you interested in this subject, the article can be found at http://www.rmkb.com/tasks/sites/rmkb/assets/image/2-2012%20-%20Best's%20Review.pdf.

Messrs. Pappas & Clarke wish to thank Best's Review for publishing the article.

EPA releases final health assessment for Tetrachloroethylene (aka Perc)

EPA has posted its final health assessment for tetrachloroethylene (aka perc) to its Integrated Risk Information System (IRIS).

Perc is widely used in the dry cleaning industry, although states such as California are requiring that it be phased out.  See http://epa.gov/oppt/existingchemicals/pubs/perchloroethylene_fact_sheet.html and http://www.arb.ca.gov/toxics/dryclean/dryclean.htm.  Because of design and operational failures in dry cleaning machines and businesses in the past, perc is unfortunately a common pollutant found in groundwater.  It was also a commonly used degreaser in the 1950's and 1960's, and such operations combined with sloppy disposal practices also added to groundwater contamination.

EPA states that it does not believe that wearing clothes dry cleaned with perc will result in exposures which pose a risk of concern.  EPA has already taken several significant actions to reduce exposure to perc, including but not limited to setting clean air standards for dry cleaners that use perc (which includes a phase-out of the use of perc by dry cleaners in residential buildings by December 21, 2020). EPA also set limits for the amount of perc allowed in drinking water and levels for cleaning up perc at Superfund sites throughout the country, which will be updated in light of the IRIS assessments.  For the California MCL, see www.swrcb.ca.gov/water_issues/programs/gama/docs/coc_pce.pdf.  

The toxicity values reported in the perc IRIS assessment will be considered in:
• Establishing cleanup levels at the hundreds of Superfund sites where perc is a contaminant.
• Revising EPA’s Maximum Contaminant Level for perc as part of the carcinogenic volatile organic compounds group in drinking water, as described in the agency’s drinking water strategy.
• Evaluating whether to propose additional limits on the emissions of perc into the atmosphere, since perc is considered a hazardous air pollutant under the Clean Air Act.

The IRIS data can be found at http://www.epa.gov/iris/subst/0106.htm. 

Other details on perc can be found at http://toxnet.nlm.nih.gov/cgi-bin/sis/search/f?./temp/~5diRx9:1:FULL.

Bird flu may increase risk of Parkinson's

At least in mice, the "bird flu", known more specifically as H5N1, may make those who survive the disease more susceptible to Parkinson's Disease.  Although flu is generally thought of as a disease of the body, H5N1 can move into the brain.  How it gets there is subject to debate.  Some researchers believe it moves from the GI tract to the brain along the vagus nerve (see http://en.wikipedia.org/wiki/Vegus_nerve); others, that it moves along the olfactory nerve (see http://en.wikipedia.org/wiki/Olfactory_nerve).

Researchers examined the brains of mice that survived a bout of H5N1 (mice and people both have the same about 50% survival rate).  The researchers found nerve cells that make one of the brain’s key messengers (dopamine, which helps regulate movement) shut down production about 10 days after infection.  These nerve cells, which are the same cells that degenerate in people with Parkinson’s disease, appear to focus all their activities on survival.  By day 60, the dopamine starts to reappear, and levels are back to normal 90 days later.  However, signs of inflammation in the brain remain.

Just three days into the infection, the brains of the mice showed evidence of a strong inflammatory response, and this response appeared to linger over time.  Proteins that accompany inflammation, and cells that patrol the brain looking for threats, were still present and "on duty" in parts of the brain 90 days after the initial infection.  At this point researchers do not know whether this inflammatory related response ever goes away.

At this point the researchers believe that the virus does not cause the disease, but may make one more susceptible to Parkinson's. They speculate that if one is already susceptible, the infection alone may be enough to trigger the disease. But, at this point, it is informed speculation.

Again, it bears repeating that toxic torts revolve around causation. Thus, in a case involving Parkinson's, it behooves counsel to consider H5N1 infection as an alternative explanation. At this point the science is still developing, but in a year or so it may be more substantive.

The report can be found at http://www.jneurosci.org/content/32/5/1545.abstract.

Statistics, a weak link in environmental, medical, & toxicological studies?

Statistics are used throughout science both by those proposing a conclusion and those opposed to said conclusion.

Statistics form the basis for a wide variety of claims made about environmental, medical, and toxicological matters.  I would even go so far as to note that they are often utilized by charlatans to give the illusion of analysis and certainty, when no such conclusions are justified.

An interesting assessment and discussion of the problem one often encounters with statistics used in various studies can be found at http://www.sciencenews.org/view/feature/id/57091/title/Odds_Are,_Its_Wrong.  I commend it to your review.  A skeptical attitude toward any expert needs to be an attorney's SOP, especially in this age of Daubert.  (See http://en.wikipedia.org/wiki/Daubert_standard for an overview of Daubert.)

Did Gulf surface bacteria not find Deepwater Horizon oil to be a complete diet?

Prior posts have discussed various aspects of the Deepwater Horizon oil spill and its impact on the biota of the Gulf.

Bioremediation has several goals.  First, one uses nature to remediate contamination, saving significant sums.  Second, the "food" (contaminant) should cause the bacteria to multiple so that the contamination is rapidly decreased.  Researchers have found that BP oil failed to satisfy the second goal.  Why and does this matter?

With the Deepwater Horizon oil spill, surface bacteria had a feast, but the feast did not result in an increase in number or weight gain by individual bacteria.  Researchers found that although the bacteria more than quintupled their daily "intake" of petroleum "food", there was no increase in mass.  Using enzyme measurements, researchers confirmed that the bacteria (especially those inside the slick) suffered from a shortfall of phosphorus, a nutrient essential for growth.  Offering affected bacteria extra phosphorus greatly boosted their feeding rate and their proliferation.

Even without extra phosphorus, the surface bacteria broke down oil at an unprecedented rate.  The researchers viewed this as a mystery.

However, other researchers have offered not unreasonable explanations.  One noted that although microbial oil degradation in the surface slick proceeded faster than had been expected, this may simply reflect the bacteria's adaptation over millions of years to the large number of natural oil seeps in the Gulf of Mexico.  Others argue that the fact that bacterial cells did not add mass may not be all that puzzling.  They note that Gulf bacteria have evolved several mechanisms to store oil constituents that they do not use initially as fuel; instead, some bacteria transform the oil to produce dense particles within their bodies which effectively store the oil as food energy for later use.

The study can be found at http://iopscience.iop.org/1748-9326/6/3/035301. 

The manufacturer of PCE dry cleaning machine filtering system is not a CERCLA arranger

Since 1980, Team Enterprises, LLC leased space in a shopping center in Modesto, California, where it operated a dry cleaning store.  From 1980 to 2004, Team used PCE in its dry cleaning equipment, and the machines generated wastewater containing PCE.  Team used Puritan Rescue 800 filter-and-still combination equipment ("Rescue 800"), designed and manufactured by R.R. Street & Co., Inc. ("Street") to filter and to recycle the PCE-laden wastewater for reuse.  The Rescue 800 returned distilled PCE to Team's dry cleaning machines and deposited the resulting wastewater into an open bucket.  Once in the bucket, some of the remaining PCE would separate from the water, allowing Team to recapture "pure" (or visible amounts of) PCE for reuse.  The remaining wastewater contained dissolved (and thus invisible) PCE.

Team disposed of this wastewater by pouring it down the sewer drain.  It comes as no surprise, given that sewer lines are designed to leak, that some of the PCE then leaked into the soil.  The California Regional Water Quality Control Board ("RWQCB") deemed the affected property in need of remediation, which Team performed at its own expense.

Team sued Street and several other defendants in District Court for contribution under CERCLA.  Team also alleged various state-law causes of action, including claims for trespass and nuisance.  The District Court granted summary judgment to Street on all claims, and Team appealed.  In Team Enterprises, LLC v. Western Inv. Real Estate Trust et al, 2011 U.S. App. LEXIS 15383 (9th Cir.: 7/26/11), the 9th Cir. reviewed the case.

The Court found arranger liability under Section 9607(a)(3) applied only if the material was "waste" rather than a useful product; the Court concluded that, at most, the equipment's design indicated that the manufacturer was indifferent to the possibility that residual solvent would be poured down the drain.  This was not sufficient to show arranger liability.  No evidence indicated the equipment was designed to be a waste disposal machine.  The equipment's self-evident purpose was to recover and to recycle usable solvent that would otherwise be discarded.  Allowing intent to be inferred from a mere failure to warn would expand the scope of arranger liability.  The manufacturer had no legal authority to direct the cleaner's conduct, and the cleaner failed to establish that the manufacturer exercised any actual control over the dry cleaner's disposal of the residual solvent.  As such, there was no arranger liability.

As to the state law claim for nuisance, the Court held that a defendant may be liable for assisting in the creation of a nuisance if he either (1) affirmatively instructs the polluting entity to dispose of hazardous substances in an improper or unlawful manner, or (2) manufactures or installs the disposal system.  Mere but-for causation, on the other hand, does not give rise to nuisance liability. 

As to the state law claim for trespass, the Court held that a trespass is an invasion of the interest in the exclusive possession of land.  The essence of the cause of action for trespass is an unauthorized entry onto the land of another.  In California, it is established that trespass may include invasion by pollutants.  Even though the action causing the entry of pollutants does not have to be intentional, the entry must be "unauthorized" to support a cause of action for trespass.  One cannot commit an actionable interference with one's own possessory right for purposes of a trespass claim. 

In reviewing the case, one is left with the conclusion that the failure of Team was one of proof and perhaps cause of action.  A RCRA environmental endangerment claim might have been more effective; Team would not be out of pocket money.  However, given the RWQCB order, Team may not have been able to hold off doing a lot of site characterization and some remediation during the pendency of the litigation, but it might have put off spending inordinate sums.

Also, it is most unfortunate, but the history of PCE dry cleaning is one of everyone ignoring the implications of their activities and failure of equipment design.  Sewers are designed to be porous, and some litigation has pursued cities for being involved in the creation of contaminant plumes.  Early dry cleaning machine designs, the failure to provide hoses that could stand up to the assault of PCE and thus regularly failed, yielding major spills, instruction manuals that recommended cement lined culverts to catch PCE spills (when PCE goes through cement), are just some of the many failures of the entire industry to address key problems with the chemical and the technology.  [Unfortunately, some of the "green" alternatives, while more environmentally friendly, still hold the potential for harm to the workers in the industry.]

Although it is beyond the scope of this blog because it really would require the scope of a law review article, the 9th Cir.'s interpretation of California state law may be open to debate on some key points.  To say that the case law in California is replete with cases whose statement of the law contradict one another is to state the obvious.  For practitioners in California such a fractured state of the law on such key torts as nuisance makes for "exciting" litigation.

Under California's Polanco Act, owners of a right-of-way to property are not owners or operators for subsurface contamination they did not cause and had no duty to investigate

California's Polanco Act provides a powerful (some would say one sided) tool for Redevelopment Agencies to force the remediation of a site subject to redevelopment, or to cause PRP's to reimburse such agencies for the remedial cost outlays.  [As an aside, it should be noted that Governor Brown has proposed doing away with redevelopment agencies as part of his solution to California's budget crisis.  See http://www.cp-dr.com/node/2975.]

In 1968, in order to make room for the construction of a freeway interchange between Interstate 5 and State Highway 4 in Stockton, California, the State of California entered into a contract with several railroad companies, predecessors-in-interest to the defendants in the case, to relocate existing railroad track from the proposed interchange site to a nearby State-owned parcel.  Under the agreement, the Railroads planned and approved grading and drainage improvements to the property made by the State, including the installation of a french drain underneath the new roadbed.  The "french drain" (a buried perforated pipe) was installed under the roadbed to facilitate drainage.  The railroads sold their interest in the property to the Redevelopment Agency in 1988.  In 2004 the Redevelopment Agency sold a portion to a developer, and indemnified the developer as to any contamination.  Site assessment found petroleum contamination at the site.  The petroleum contamination had likely traveled along the path of the french drain; a nearby petroleum facility was identified as the likely source.  The Redevelopment Agency sued under the Polanco Act and nuisance theory; the railroads removed to Federal court under diversity jurisdiction.

The District Court granted summary judgment for the Agency under nuisance theory and one of the Polanco Act claims. 

In Redevelopment Agency v. BNSF Railway Co. et al, 2011 U.S. App. LEXIS 13135 (9th Cir.: 6/28/11), the Court of Appeals held that the railroads were not liable for the contamination under a nuisance theory. The railroads did not create or assist in creation of the nuisance based on installation and maintenance of the french drain, which was intended to move water, not contaminants.  The railroads also did have a duty to inspect the subsurface for contamination.  The railroads were thus not liable under the Polanco Act's reference to Water Code Section 13304(a) since they did not "cause or permit" the discharge of contaminants.  They also were not liable under the Polanco Act's reference to the Comprehensive Environmental Response, Compensation, and Liability Act; as holders of a right-of-way or easement, they were not "owners" or "operators" of the property within the meaning of 42 U.S.C. Section 9607(a).  The Court thus granted judgment in favor of the railroads. 

Evidence supports association between methylmercury exposure and adverse cardiovascular impacts

Traditionally, when one considers exposure to methylmercury, adverse impacts upon the brain and kidneys are foremost in any risk assessment.  See, for example, http://www.atsdr.cdc.gov/toxfaqs/tf.asp?id=113&tid=24.  Given the state of the evidence, it would appear that this paradigm needs to be amended to include cardiovascular impacts.

Traditionally, EPA has estimated the neurological benefits of reductions in prenatal methylmercury exposure in cost-benefit assessments of rules whose purpose is to control mercury emissions and exposure (e.g., from combustion of coal-fired power plants, ingestion of fish & seafood).  Because a growing body of evidence suggests that methylmercury exposure can also lead to increased risks of adverse cardiovascular impacts in exposed populations, EPA assembled a panel of experts to assess the data.

The experts found the body of evidence which addressed the potential link between methylmercury and acute myocardial infarction (aka "heart attack"; see http://en.wikipedia.org/wiki/Myocardial_infarction) to be sufficiently strong to support its inclusion in future benefits analyses, based both on direct epidemiological evidence of a methylmercury link and on methylmercury's association with intermediary impacts that contribute to acute myocardial infarction risk.  The experts also noted that additional research in this area would be beneficial to further clarify key characteristics of this relationship and the biological mechanisms that underlie it.  Even so, they considered the current epidemiological literature sufficiently "robust" to support a recommendation of the development of a disease-response function.

The assessment can be found at http://ehp03.niehs.nih.gov/article/fetchArticle.action?articleURI=info%3Adoi%2F10.1289%2Fehp.1003012.

Diversity not only provides increased stability to ecological communities, it is more efficient for remediating contamination

It has long been an axiom of environmental science that a diverse ecological community (aka biodiversity) is more resilient and productive because it stabilizes the ecological system as a whole.  This should not be confused with a focus on an individual species for which the complex interactions within a diverse ecosystem can lead to drastic fluctuations in abundance.  See, for example, https://www.etap.org/demo/biology_files/lesson6/instruction5tutor.html.  Thus, it is difficult, if not impossible, to select which individual species to save, let us say, within an ecological community; what should be preserved is the ecological community as a whole.  This concept, ironically, also applies to remediation of contaminants in surface and ground waters. 

In lab setups that mimicked the "lazy pools" and rushing freshets of freshwater streams, researchers found that a mix of algal species proved more than four times as efficient at taking up nitrates than a single supercleaner species living in the same kind of stream.  The key appears to be that diversity can take advantage of niches.  For example, when the researchers added a mix of algae to simplified stream setups lacking a variety of living conditions, or niches, the so-called "diversity bonus" did not appear.  What gives diversity its efficiency, then, is not some superspecies that happens to be in the mix; instead, the long-noted diversity bonus in nutrient uptake comes from the way a mix of species can expand and take advantage of the many different niches in an environment.  This then raises a question about the attempt by many researchers to create a single superspecies to address a particular contaminant; the best strategy would appear to be to provide a mix of organisms that can each take advantage of different niches to execute their remedial effect.

The notion of diverse communities having impacts by expanding into multiple niches and complementing each other has had great appeal, but empirical confirmation has been difficult.  Many studies that are advocated as supporting this concept have had "confounding factors".  This most recent study goes a long way to supporting the general principle.

The study can be found at http://www.nature.com/nature/journal/v472/n7341/full/472045a.html.