Ear To The Ground

California Court of Appeal explains the finer points of an "underground regulation" and why they are invalid, in a case that cannot be cited as precedent

California has long been concerned with so-called "underground regulations" (rules, policies, guidance, and procedures treated as though a regulation, but issued or promulgated without following the procedures of the Administrative Procedure Act).  These types of defective rules and policies, often dressed up as "guidance", were the subject of the recent California Court of Appeal case Naturist Action Committee et al v. Cal. State Department of Parks & Recreation, 2009 Cal. App. Unpub. LEXIS 5115 (2009).  Because the case has been "depublished", it cannot be cited as precedent.  But, for anyone with an interest in this topic, and looking for a roadmap to challenging such rules, policies, guidance, and procedures, this is a very good introduction to the subject matter.  

U.N. states that pollution accord will come into effect in October

The United Nations says an international accord requiring governments to publicly identify sites of environmental pollution will come into force on Oct. 8.

 

The U.N. Economic Commission for Europe, or UNECE, has noted that the Protocol on Pollutant Release and Transfer Registers covers 86 potentially hazardous substances.  UNECE has now announced that 36 countries have signed the protocol, which brings it into effect.

 

All signatories to date have been European though the Protocol is open to any government.

 

The EPA already has a register similar to that foreseen by the Register known as the Toxics Release Inventory Program.

 

More information on the Protocol can be found at http://www.unece.org/env/pp/prtr.htm.  Information on the Toxics Release Inventory Program can be found at http://www.epa.gov/TRI/.

Connecticut Federal District Court bars evidence of soil samples as sanction for failure to preserve evidence

Two prior posts have noted holdings in the case of Innis Arden Golf Club v. Pitney Bowes, Inc. (D. Conn. 2009).  One of the holdings in the more recent case deserves further expansion and analysis.

In the holding at 257 F.R.D. 334 (2009 U.S. Dist. LEXIS 43588), one of the key issues was the failure of plaintiff to preserve evidence of contaminated soil from samples taken at the relevant property.  The Court held that the plaintiff had a duty to preserve the evidence once the plaintiff began to focus on the defendant as the source of the contamination, even if such occurred before the case was filed.  The Court found that the rule laid down in Kronisch v. U.S., 150 F.3d 113 (2nd Cir. 1998) was controlling:  "the obligation to preserve evidence arises when the party has notice that the evidence is relevant to litigation."  Because of this spoliation, the Court sanctioned the plaintiff by baring evidence from soil samples.

However, there are a number of questions that make this so-called general principle of questionable merit or application.  First, frequently samples can be duplicated.  If a party merely has to engage in ordinary site characterization activities to assess the causal issues, then the penalty imposed seems not only unduly harsh, but illogical.  Second, preservation of evidence in some cases is irrelevant because the sample cannot be tested in a meaningful manner.  Unlike the PCB's in this case in which there is no holding period limit, many chemicals and other contaminants must be tested within a fixed number of days or weeks of the taking of the sample [plus preserved in a specified manner] in order to yield results that are deemed meaningful and accurate.  Those time periods are often as short as a month.  Laboratory analyses made after the expiration of the holding period are deemed invalid.

Thus, the reality of this issue is much more complicated and complex than this ruling would appear to suggest.  However, prudence suggests that samples, even if meaningless will have to be preserved.  Given the time limits, counsel will need to consider if notice needs to be given to potential targets so that they can conduct their own testing even before a case is filed.  Of course, access agreements (with the usual indemnity and insurance requirements) will also be needed to make sure that third parties do not add to site contamination or cause contamination to be spread.  Data sharing requirements will also need to be part of any agreement.  The parties will have to be realistic to a fault in terms of engaging in good faith and speedy negotiations if they do not want another layer of complexity to be added to a case. 

Finally, the issue has general application to all types of environmental and toxic tort litigation.

So-called safe lead levels have adverse impacts on children, notes new study from University of Bristol

Researchers from the University of Bristol Centre for Child and Adolescent Health set out to see if there was any effect on the behavior and intellectual development of children who had ingested just below the so-called safe level of 10 micrograms per deciliter (or tenth of a liter) of blood.

 

The Bristol researchers took blood samples from 582 children at the age of 30 months.  They found 27% of the children had lead levels above five micrograms per deciliter.

 

They followed the children's progress at regular intervals and then assessed their academic performance and behavioral patterns when they were seven to eight years old.  After taking account of factors likely to influence the results, they found that blood lead levels at 30 months showed significant associations with educational achievement, antisocial behavior, and hyperactivity scores five years later.  With lead levels up to five micrograms per deciliter, there was no obvious effect.  But lead levels between five and 10 micrograms per deciliter were associated with significantly poorer scores for reading (49% lower) and writing (51% lower).  A doubling in lead blood levels to 10 micrograms per deciliter was associated with a drop of a third of a grade in their Scholastic Assessment Tests (SAT's).  And above 10 micrograms per deciliter children were almost three times as likely to display antisocial behavior patterns and be hyperactive than the children with the lower levels of lead in their blood.

 

Details on the study can be found at http://www.bristol.ac.uk/news/2009/6550.html.

CERCLA does not completely preempt state law causes of action arising from contamination, holds California District Court

Plaintiff California Water Service Company is a public utility water corporation that owns and operates public drinking water systems.  The complaint alleges that PCE and its degradation products ("PCE") are contaminating and damaging plaintiff's drinking water supply wells in dispersed locations throughout the state.  Plaintiff alleges that defendants are manufacturers, distributors, and retailers of PCE and/or PCE-containing products that caused the contamination of plaintiff's wells.  The complaint alleges eight state law causes of action: (1) strict products liability (design defect); (2) strict products liability (failure to warn); (3) nuisance; (4) trespass; (5) negligence; (6) negligence per se; (7) California Civil Code violations; and (8) equitable indemnity.  Plaintiff seeks to recover compensatory and all other damages, including but not limited to all necessary funds to reimburse plaintiff for "the costs of designing, constructing, installing, operating and maintaining the treatment facilities and equipment required to comply with state and federal safe drinking water laws and to remove PCE from the drinking water it supplies to the public and/or for the costs of securing alternative sources of water as a result of the PCE contamination ...".

 

Defendant PPG Industries, Inc., filed a timely notice of removal.  Defendant's notice of removal states that the eighth cause of action for equitable indemnity is actually a claim for contribution under CERCLA.  Defendant noted that the eighth cause of action for "equitable indemnity" alleged that the California Department of Toxic Substance Control ("DTSC") pursued an enforcement action against plaintiff arising from PCE contamination in Chico, California, and that a settlement between DTSC and plaintiff was approved by a court on May 23, 2007.  In contrast, the eighth cause of action alleged that plaintiff "is in no way legally responsible for the events giving rise to the Settlement, nor legally responsible in any manner for the damages allegedly sustained by DTSC" and that defendants' acts "were the direct and proximate cause of the PCE contamination that was the subject of DTSC's complaint and action against Plaintiff."

 

Plaintiff moved to remand, contending that the eighth cause of action arises under state law, not CERCLA, and also contending that PPG's notice of removal is procedurally defective because defendant MW Equipment did not join in the removal.

 

In Cal. Water Service Co. v. Dow Chem. Co. et al, 2008 U.S. Dist. LEXIS 109675 (N.D.CA. 2008), the District Court considered the issue.  The Court noted that “It is well-established that CERCLA does not completely preempt state law claims. See generally ARCO Environmental Remediation, L.L.C. v. Montana, 213 F.3d 1108 (9th Cir. 2000). Defendants do not contend otherwise, but instead argue that because the DTSC's lawsuit against plaintiff, and the resulting settlement, were under CERCLA, that the eighth cause of action necessarily also arises under Section 113(f)(3)(B) of CERCLA. As an initial matter, the Court notes that on its face, the eighth cause of action does not plead the elements of a Section 113(f) claim for contribution…”.  The Court also found that the cases cited by Defendants were not applicable to the issue at hand.  Further, “Defendants argue that because plaintiff settled the CERCLA action with the DTSC, plaintiff is a liable party under CERCLA. While that is correct, the Court finds that it is defendants' status, not plaintiff's, that is relevant for purposes of analyzing the nature of plaintiff's equitable indemnity claim. Here, defendants were not parties to the DTSC CERCLA action, and have never been alleged to be PRPs under CERCLA. Although not directly on point, the Court finds persuasive Edward Hines Lumber Company v. Vulcan Materials Company, 685 F. Supp. 651 (N.D. Ill. 1998), aff'd 861 F.2d 155 (7th Cir. 1988), where the court held that a defendant who was not a PRP under CERCLA could be subject to liability under state law… Here, although there has been no judicial determination that defendants are not PRPs under CERCLA as there was in Edward Hines, there has been no allegation either in the DTSC action or the instant lawsuit that defendants are PRPs under CERCLA. Accordingly, the Court finds that defendants' authority, which all addresses claims within a CERCLA context, to be inapposite. In light of the general principle that CERCLA does not completely preempt state law, and in the absence of any cases holding that a plaintiff may not pursue an equitable indemnification claim under state law against defendants who are not alleged to be PRPs under CERCLA, the Court holds that plaintiff's eighth cause of action arises under state law, not CERCLA. Because the Court finds that there is no basis for federal jurisdiction, the Court does not address the parties' arguments regarding the procedural defect in removal. Accordingly, the Court GRANTS plaintiff's motion for remand.”

       

Gulf of Mexico dead zone is smaller, but thicker, NOAA reports

Prior posts have noted the size and causes of the Gulf of Mexico Dead Zone, and the target for reducing the zone set for 2015.

A July 27 report by NOAA notes that the Gulf of Mexico dead zone has changed its shape.  Over the past decade the dead zone has averaged 6 thousand square miles in size, and usually been limited to water just above the sea floor.  The most recent analysis of its scope has shown it to cover 3 thousand square miles, but extending from the sea floor to much closer to the surface.  This may reflect the action of wind and waves.

An interagency group, the Mississippi River/Gulf of Mexico Watershed Nutrient Task Force noted in a 2008 report that 78% of the nitrogen and 66% of the phosphorus in the Mississippi River and Atchafalaya River basins, which are driving the dead zone, come from nonpoint sources.

The NOAA study can be found at http://www.noaanews.noaa.gov/stories2009/20090727_deadzone.html.

House bill introduced to make permanent a tax incentive to remediate Brownfield sites

The tax treatment of remediation costs is a wonder to behold in terms of its complexity.  Capitalize?  Expense?  Good luck.  If we are serious about wanting contaminated sites addressed, then the costs of such activities should always be allowed to be expensed in the tax year that the money is actually expended.  Requiring capitalization of some or all such expenses is a serious disincentive to remedial activities.

As a partial resolution of this issue, Representative Xavier Becerra (D., CA) has introduced HR 3260 [http://thomas.loc.gov/cgi-bin/query/z?c111:H.R.3260:] to make permanent a tax incentive to clean-up contaminated Brownfield sites.  It has been referred to the Ways & Means Committee.

EPA considering petition requesting ban on lead wheel weights

EPA has responded to a petition by the Sierra Club and Ecology Center, pursuant to TSCA, to prohibit the manufacture, processing, and distribution of lead wheel balancing weights.  See 74 FR 34,342 [http://www.epa.gov/EPA-TOX/2009/July/Day-15/t16815.htm].  The petition is similar to one rejected by EPA in 2005.  The Federal Register notice stated that EPA was seeking information about ways children and the environment could be exposed (e.g., dust around roadways, emissions from the smelting of the weights, emissions from the shredding of cars, and impacts on water from residues washed off of roadways).

The petitioners cited to "new information" since the rejection of the 2005 petition.  The petition argued that the voluntary program which EPA launched in 2008 [see http://www.epa.gov/osw/hazard/wastemin/nlfwwi.htm] does not go far enough in that said program will eliminate no more than 1/3 of the lead wheel weight market.  The petition also asserted that, since 2005, 1.6 million pounds of lead has fallen off of wheels onto streets where the wheel weights could be picked up and played with by children or ground into dust by vehicles.

EPA has now taken comments on the petition; the comments can be found at http://www.regulations.gov/search/Regs/home.html#home.  In the "Enter Keyword or ID" box, put EPA-HQ-OPPT-2009-0467, and hit "Enter".  The comments will be displayed.

A copy of the petition can be found at http://www.leadfreewheels.org/TSCA_Wheel_Weight_Petition_5-28-09.pdf.

In litigation, experts need to refer to hard data and to note how they arrived at their conclusions, notes Connecticut District Court. Duh

It seems like second nature, but in trial one always needs to make sure that one's expert(s) point to specific data related to contaminants at a site or area under consideration in order to support their conclusions and to demonstrate that alternative explanations have been ruled out.  The failure so to do cost the plaintiff his lawsuit in Innis Arden Golf Club v. Pitney Bowes, Inc., 2009 U.S. Dist. LEXIS 54135 (D. Conn. 2009) [a case noted in a prior post regarding a motion by defendants].

 

Plaintiff's property was contaminated with organic pollutants identified as polychlorinated biphenyls (PCB’s).  The experts for plaintiffs, who certainly had the credentials to address the issues in the case, concluded that the operators of adjacent property were responsible for the PCB contamination on plaintiff's property without considering any other explanations, let alone the obvious alternative causes, because the experts did not consider whether other nearby industrial properties were a source of the PCB’s on plaintiff's property.  The District Court found that the experts' methods and opinions were not capable of being tested or verified because the underlying data was not available.  The opinions were neither based on sufficient facts or data nor the product of reliable principles and methods.  Plaintiff's expert testimony was insufficiently reliable to be admissible, the Court held.  Without the experts' testimony, plaintiff could not have established a causal relationship between the costs it incurred in cleaning up its property and the PCBs found on the adjacent property, as required by 42 U.S.C. §9607(a)(4).

 

This case also has a spoliation aspect to it that will be discussed in a forthcoming post.

Supreme Court to review Florida beach erosion law alleged to be a "taking"

One of the ongoing debates over the last couple of decades has been whether regulatory action, particularly environmental and land use controls, are an illegal "taking" under the Fifth and Fourteenth Amendments to the U.S. Constitution.  To state that the past Supreme Court cases have been a model of obscurity would be a classic understatement.  Once again, the issue has been tied up.

After a seven-mile restoration in the City of Destin, Florida, and in Walton County, Florida, resulted in a new high water line, six property owners lost direct access to a beach.  They formed a nonprofit organization and sued.  The landowners argued that 5th and 14th Amendments were violated because the scheme eliminated property rights linked to their (formerly) beachfront properties.  The Florida Supreme Court held 5-2 that the statute did not unconstitutionally deprive the property owners of littoral rights relating to the use of coastal property without just compensation.  Walton County et al v. Stop the Beach Renourishment Inc., 998 So.2d 1102 (Fla. 2008).

The U.S. Supreme Court has now agreed to review the Florida case.  Stop the Beach Renourishment Inc. v. Florida Department of Environmental Protection et al, Docket No. 08-1151 (2009).

What is ironic about this case is that it is reflective of a key shortcoming in local planning activities.  In a number of geographic areas (e.g., coasts, slopes and mountains) governments permit development in areas that are inherently unstable or prone to change, often not just from Mother Nature but also from human-induced activity (e.g., dams on rivers impacting the coastal movement of sand, and thus beach erosion).  Folks complain.  Then, when government takes action to "correct" the problem (often nothing more than a temporary fix), others complain because the correction causes problems.  Nature is not constant; it is ever changing.  Like rebuilding in forests after fires, in floodplains after floods, and in earthquake zones after earthquakes, residents are clueless about the likely long-term consequences.  As the economists say, time to internalize the externalities so that the true cost of this shortsighted behavior is not thrust upon the taxpayers.  What it also demonstrates is that traditional concepts of taking and regulation, while reflective of 18th and 19th Century understanding of government actions and of Nature, are totally obsolete in the context of modern understanding of geology and ecology.