Bill Wagner
Partner: Taft Law - Attorney Focused on Environmental Law, Complex Litigation, and White Collar Defense
Comments
- Scott, Great question. EPA had authority over Teck as a CERCLA "arranger" with respect to the waste it deposited at a site / facility in the United States. EPA did not argue that the Canadian sites where Teck deposited other waste constituted CERCLA facilities. The relevant discussion is quoted below. According to the Ninth Circuit: The [US EPA Unilateral Aadministrative Order] defines the facility as being entirely within the United States, and Teck does not argue that the Site is not a CERCLA facility. Because the CERCLA facility is within the United States this case does not involve an extraterritorial application of CERCLA to a facility abroad. The theory of Pakootas's complaint seeking to enforce the terms of the Order to a “facility” within the United States, does not invoke extraterritorial application of United States law precisely because this case in-volves a domestic facility. * * * Because the EPA and Pakootas in seeking enforcement of the EPA's [UAO] do not characterize either the Trail Smelter or the Columbia River in Canada as a facility, we need not and do not reach whether these sites are facilities for purposes of CERCLA.
Great question. Not all of the texts were capable of being recovered from Mix's iPhone. The mere fact he deleted the texts and forced a more intensive and costly forensic investigation to try to recover the destroyed evidence obstructed the investigation.
On March 21, 2012, the U.S. Supreme Court issued its opinion in Sackett v. EPA and held that US EPA's compliance order constituted final agency action to which the Sacketts were entitled to immediate pre-enforcement judicial review. The concurring opinions of Justices Ginsburg and Alito stressed that the Sacketts may immediately litigate their "jurisdictional challege" in federal court.
This opinion is a game changer and will likely lead to more lawsuits where property owners can march into federal court and seek judicial review rather than face "the combination of the uncertain reach of the Clean Water Act and the dracanoian penalties imposed ... [which] leaves most property owners with little practical alternative but to dance to the EPA's tune."
Sackett v. EPA.pdf (124KB)On March 22, 2012, the Indiana Supreme Court held that an "absolute pollution exclusion" in commercial general liability insurance policies issued between 1997 and 2002 was ambigous and unenforceable in State Automobile Mutual Ins. Co. v. Flexdar, Inc. Accordingly, the insurance company must now pay for the policy holder's cost to comply with a cleanup demand from the Indiana Department of Environmental Management.
The record shows that the methodology followed was from the OSWER Draft Guidance for Evaluating the Vapor Intrusion to Indoor Air Pathway from Groundwater and Soils (Subsurface Vapor Intrusion Guidance). (USEPA 2002, EPA 530-D-02-004). Two types of samples were collected: (1) time-weighted-average building air samples, and (2) source evaluation samples collected as short-term grab samples. All were collected with Summa canisters.
On February 13, 2012, Tilot filed its notice of appeal "because the District Court refused plaintiff's request for a RCRA injunction against BP." It will be interesting to see how the 7th Circuit Court of Appeals decides this case.
Thanks Vini. For me, the two main takeaways from the discussion about the science were: (1) screening levels are just that - something used to determine if further action is warranted, they are not indicative of imminent and substantial endangerment to human health and the environment; and (2) OSHA levels are an appropriate measuring stick when looking at an industrial property with similar exposures. The science behind residential versus industrial exposures sounds like a topic for a future post...
- The Natural Resources Defense Council sent a Freedom of Information Request to the Army Corps of Engineers to peak in its file to find out how this incident came to EPA's attention. In an amicus (or "friend of the court") brief, the NRDC noted that EPA visited the site within 3 days of when the clearing of the site began. They did not state who notified EPA, but many cases begin on anonymous tips from concerned citizens, neighbors, disgruntled employees, competitors, etc. I have attached a copy of NRDC's brief below if you are interested in reading further about the early events that started this case.
Insightful information about the availability for continuous monitoring from a cross-posting to a LinkedIn Group:
Mark Kram, Ph.D. • Hello Bill,
My colleagues and I just published an article in the most recent issue of the Journal of Remediation that describes how exposure and explosion risk conditions can be dynamic. We used automated continuous monitoring via sensors to observe relationships between methane and atmospheric pressure. This information was initially shared with regulators, who then encouraged us to publish the article. Since sharing the information, CA has released new guidance that advocates for continuous monitoring. In Europe this has been recognized for a few years, perhaps because the sensors are from the UK. Implications are profound, as our observations suggest that (at least for some cases, and we need to determine criteria for distinction) worst case scenarios may only be derived through continuous monitoring. Furthermore, it allows us to now design remediation systems triggered by our observations. I'd be happy to discuss this off-line if so desired.
Mark Kram, Ph.D. • Hello Peter,
In October, CA DTSC released their new VI guidance (http://www.dtsc.ca.gov/SiteCleanup/Vapor_Intrusion.cfm), which advocates for continuous monitoring in several sections. Regarding methane sensors, visit the IonScience web site. There are probably others as well. However, their GasClam can monitor up to 6 parameters simultaneously (including Total VOCs). We integrate their data into automated web based visualizations, and I can forward a copy of our recent paper off-line if you contact me.
The IonScience TVOC sensor is more of a total carbon counter based on PID. However, there are ways to convert readings to estimates of specific halogenated compounds if the conditions are amenable. Detection limits would be right at action level or just above, so it's not perfect, but useful. I do know of a few options for automatically measuring groundwater TCE solute concentrations.
I suspect methane could become much more important at chlorinated VI sites based on some of Dr. John Wilson's recent efforts, where he points to oxygen limitations in the presence of methane.
Thank you for your inquiry and comments.Mike,
To complicate matters, USEPA recently announced new proposed UST rules - http://bit.ly/vlJgV6. Lots of issues.
Jeff, having the warranty language in the report ought to protect you from strangers who claim to have relied solely on your report.
However, if the stranger gets the scope of work and contract, having the language in your scope of work and contract prevents a shrewd lawyer from piecing together an argument to discredit the warranty by saying that if you really meant it, you would have put in similar statements in your contract and/or scope of work. It doesn't hurt to cover all the bases.
Also, having the language in your contract and scope of work puts the client on notice of those conditions right from the beginning so that the client cannot claim surprise, which may happen after the client passes your report on to a buyer several years later who wants more assurance that it can rely on the report rather than paying you to update your work.
It’s important to prevent strangers from being able to claim that they relied on your report. Here is a purely hypothetical example to drive home the point.
Owner asks consultant to do a limited property investigation. Later, owner decides to sell and includes your report in the sales materials.
A few years after the buyer purchases the property, the property’s value drops because of market conditions (too much supply, not enough demand, interest rates, inability to obtain financing), nearby crime, a change in traffic patterns that drives traffic away from the property, etc.
The buyer wants out and gets ready to sell. In the process, a new consultant discovers a “defect” not disclosed in your report. (The owner never told the buyer that you were only to do a limited investigation.)
The buyer sues the seller for breach of contract to rescind the sale and get its money back. The seller is long gone and the purchase money spent. The buyer then sues the consultant claiming that it was entitled to rely on the seller’s sales materials, including your report that failed to identify the defect.
If your contract, scope of work, and report all stated that no one other than your client could rely on your report, you ought to be able to file the materials with the court and end the case short of trial. Without that protection though, you will be stuck in years of litigation with a stranger who is not your client and burning through your deductible.
Thanks for the comments. I've seen some threads about organizing EPs as a profession. There are other professions that have done just that. For example, the Appraisal Institute has work and educational requirements for its professional designations MAI (member appraisal institute) and SRA (senior residential appraiser) where appraisers have to earn and maintain their credentials. Part of the process includes submitting reports for other certified members to review before you can be admitted to the organization. And, the orgnaization does a great job of promoting to lenders and the public the benefits of using a certified appraiser.
As far as a mechanism to check work, Certified Financial Planners have to disclose whether they have been a party to a customer complaint and have procedures to censure, reprimand, or disbar members who fail to hold up the high ethical standards of their profession. Similar procedures could be adopted for certified EPs.
Thanks for the comment Larry.
When you look at the definition of environmental professional at 40 CFR 312.10(b), our definitions aren't that far apart.
As far as site investigations, I would caution against sending someone who does not qualify as an EP to conduct a site investigation on his or her own. The rule requires an EP's supervision or responsibility at all phases of the process to develop opinions and conclusions regarding conditions indicative of releases or threatened releases on, at, in, or to a property.
Ultimately, the person who will be sued if there is a mistake will be the person whose name is on the report as supervising EP. The tag-a-long claim to the breach of contract / malpractice lawsuit will be for failing to properly train and supervise the non-EP. I've seen more of these claims in the appraisal industry where a supervising appraiser may have several appraisers in training that sacrifice quality for speed.
Thanks for the encouraging words Jeff.
My opinion, and only my opinion, is that the definition of an environmental professional is right where it should be. There is a lot to be said for having decades of real world experience that often gets lost in the discussion over degrees and certifications. That being said, however, I am a strong advocate for continuing education to allow EPs to learn the latest best practices and procedures and to differentiate themselves as being a true expert in their industry.
I began writing this blog because a large part of my practice involves working with and representing environmental consultants. My posts aren't necessarily aimed at buyers, or sellers, or lenders, but at environmental consultants. I tend to look for cases where a consultant is accused of malpractice or having issues with an insurance company over payment and write about those cases to keep me up to date and to also educate environmental consultants along the way. My hope is that if a consultant reads my blog, they can learn about the types of fact patterns or circumstances that can turn into malpractice lawsuits and avoid them. And, they can use a post like this one to help sell their services because you're not never just selling a Phase I, but peace of mind. No one wants to buy a lawsuit. Buyers, sellers, and lenders want protection and legal defenses from environmental claims and properly performed environmental due diligence provides that protection.
Here, for example, the buyers chose not to pay for an environmental site assessment maybe thinking that the agents would pay for any misstatements. The buyers' decision not to pay for an ESA cost the buyers 35% of their damages even though a jury found that the seller's real estate agents misrepresented whether the property had been remediated. An environmental consultant can talk about this case involving the sale of a condo in Michigan the next time a buyer balks at a consultant's fee to perform environmental due diligence.
As far as educating the real estate market, you could certainly take a handful of my posts and put together a pretty good presentation on why environmental due diligence is vitally important. To that end, if anyone ever wants to use a post, feel free to do so.
By striking, adding, or otherwise changing the terms, are you affecting the owner's legal rights against the contractor? I'm not talking about the specifications for the bid, but terms that have legal consequences like the proper use of substitutes, the type of damages that can be recovered, mandatory arbitration, etc. If your actions are affecting the owner's legal rights against the contractor, then one could argue that the city's engineer charged with preparing the bid specifications is practicing law.
Maybe through experience though, you've seen a particular clause come back to bite your client and you'd like it removed. That would be a great topic to discuss with the city attorney before putting out the bid. More importantly, by having that conversation you show your client how valuable your experience is.
I am the technical advisor to the community group at this site (MEW). There is no requirement for continuous air monitoring, and I am not familiar with a technology that can do this. You mentioned the use of sensors for methane detection. Could you point me to an information source. Do you know of any progress in sensor technology for chlorinated solvent vapors, especially those that can speciate the compound and have fairly low detection limits.
At MEW, we are not concerned with methane, but at some other sites that I have just had some inquiries about, methane is an issue.