The Rule of Law, Agency Enforcement and the Environment

Bracewell LLP
Brittany M. Pemberton and Daniel J. Pope

November 6, 2018

Over the past two years, officials within President Trump’s administration have invoked the rule of law regarding the administration’s enforcement goals on issues ranging from marijuana production to immigration. Late last month, we saw a glimpse into how the Department of Justice’s Environment and Natural Resources Division (ENRD), at the time led by Acting Assistant Attorney General (AAG) Jeffrey H. Wood,[1] views application of the rule of law to environmental and natural resource litigation and enforcement. The Acting AAG presented the keynote speech at the American Bar Association’s Section of Environment, Energy, and Resources (SEER) Conference. He reflected on his time as AAG with ENRD. (His full remarks are available here.) Acting AAG Wood’s remarks built upon the March 2018 guidance entitled “Enforcement Principles and Priorities.” Bracewell’s Environmental Strategies Group developed a blog series on the guidance, accessible here.

In his remarks at the SEER Conference, Wood emphasized that the impartial rule of law is as much a method of decision-making as it is an outcome. For ENRD, this includes everything from increasing prosecution of wildlife trafficking crimes to defending controversial — but still lawful — projects such as federally permitted pipelines. ENRD continues to defend such projects around the country, consistent with the March 2018 guidance, prioritizing enforcement cases that protect American infrastructure. And, although ENRD and other federal agencies have continued to bring tough enforcement actions against regulated entities for a variety of violations, Wood explained that they should strive for predictability and a fair and neutral reading of environmental laws and regulations. Instead of using enforcement to dictate a preferred policy, Acting AAG Wood asserted that ENRD’s new approach will be to drive straight down the middle: Civil enforcement actions should never be used to convert guidance documents into binding rules, which would violate due process by evading notice and comment requirements. Many regulated entities welcomed this perspective based on their strong preference for a more stable and discernible background of legislation, regulation, and enforcement against which they can plan, invest, permit and comply.

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Risk Management Roadmap: Navigating Environmental Due Diligence in Multi-Jurisdictional Transactions

Hunton Andrews Kurth LLP
P. Scott Burton

October 1, 2018

This article was originally posted in the Nickel Report, The Hunton Energy & Environmental Law Blog

Depending upon the assets being acquired or project being developed, a well-designed due diligence plan can be a critical component in managing transaction risk both before and after closing or commercial operation. Adeptly managing the due diligence process requires careful thought to appropriate timing and scope at both the front and back ends.

Among the most critical items in ensuring a successful outcome are consulting decision-makers who are driving the transaction and engaging professionals to provide appropriate support well in advance. Too often, key risks are overlooked or not adequately allocated or managed as a result of a rushed or improperly focused due diligence effort. Particularly for assets or projects with an inherently higher environmental, health and safety, or social (EHSS) impact potential, attempting to manage risk through the purchase and sale or development agreements alone also may not suffice. For example, avoiding a risk by carving out particular assets, employing third-party risk management strategies such as insurance policies, and post-acquisition integration or stakeholder engagement plans can be among the more effective means of managing EHSS risk—but these each require careful strategic planning by a team of professionals with the skills and experience to navigate a transaction’s complexities, particularly in a cross-border context.

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Environmental liability in the USA

Beveridge & Diamond PC
James M. Auslander, Ryan J. Carra, Virginie R. Casey, Andrew C. Silton, Shengzhi Wang and Nicole B. Weinstein

October 1, 2018

 Liability

 Types of liability

 What types of liability can arise for environmental damage (eg, administrative, civil, criminal)?

There is no US generalised regime for environmental damages. Statutes, regulations and common law can impose various types of liability, including administrative, civil and criminal. Courts in turn establish precedent for liability in cases arising under various environmental laws. Alleged violators may face government administrative actions, civil suits or citizen suits. Only the government can prosecute criminal liability in court.

The government generally follows proportional enforcement. Minor offences may trigger administrative or civil sanctions; more serious and intentional violations trigger more severe sanctions or even criminal charges. The government’s burden of proof is highest in criminal cases.

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Third Circuit Holds Current Owners May Be Liable for Past Remediation Costs Under CERCLA

Manko Gold Katcher & Fox
Shelby Hancock

October 10, 2018

Last week the Third Circuit held that the owner of a remediated site could be liable under CERCLA § 107(a) for environmental response costs incurred before it acquired the property. Pa. Dep’t of Envtl. Prot. v. Trainer Custom Chem., LLC., __ F.3d __, No. 17-2607, 2018 WL 4844077 (3d Cir. 2018). In its opinion reversing the district court’s grant of partial summary judgment in advance of trial, the court concluded that “all costs” in § 107(a)(4)(A) means an owner is “indeed liable for all response costs, whether incurred before or after acquiring the property.” Id. at *5. Our blog post discussing the district court’s decision, 204 F. Supp. 3d 814 (E.D. Pa. 2016), can be found here.

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Clean Water Act Groundwater Pollution Liability in Limbo

Ryley Carlock & Applewhite
Stacy L. Brownhill and Julie A. Rosen

October 4, 2018

The Clean Water Act (CWA) is facing an identity crisis. In the past year, conflicting federal court decisions have created a circuit split as to whether the CWA regulates pollutant releases into groundwater that is hydrologically connected to navigable waters. The Ninth and Fourth Circuits interpreted CWA liability broadly, applying to indirect releases of pollutants into federally protected surface waters via groundwater. The Sixth Circuit interpreted CWA liability narrowly, applying to only direct releases of pollutants into federally protected surface waters.

The uncertainty leaves regulators and the regulated community in limbo and awaiting a possible U.S. Supreme Court decision and clarifying action by the U.S. Environmental Protection Agency (EPA). While in limbo, operators in various industries – e.g., oil and gas, wastewater utilities, electric utilities, water providers, mining – are at risk of possible agency requests for groundwater quality data, enforcement action or possible citizen suits for illegal discharges based on pollution releases into groundwater that is hydrologically connected to a navigable water covered by the CWA.

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EPA contractors

EPA Extends Deadline For PFAS Comments To September 28, 2018

Holland & Knight
Dianne Phillips and Deborah E. Barnard

September 9, 2018

In the wake of the PFAS National Leadership Summit convened by the U.S. Environmental Protection Agency (EPA) on May 22-23, 2018, EPA opened a public docket to solicit comments on per- and polyfluoroalkyl substances (PFAS), a category of man-made chemicals that have been widely used to make products because of their stain-resistant, waterproof and/or nonstick properties. Specifically, EPA seeks to obtain information on ongoing efforts to characterize risks from PFAS, as well as develop monitoring and treatment and cleanup techniques, to inform near-term actions needed to address challenges currently facing states and local communities, and to develop risk communication strategies to address public concerns with PFAS. The original comment deadline of July 20, 2018 was recently extended to Sept. 28, 2018.

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LSRP Corner: Capping of Volatile Contaminants for the Impact to Groundwater Pathway

Synergy Environmental, Inc.
Dennis Libenson, LSRP

September 18, 2018

The New Jersey Department of Environmental Protection (NJDEP) Soil Remediation Standards addresses the soil to groundwater pathway in unsaturated soils (i.e., the vadose zone) by providing Default Impact to Groundwater Soil Screening Levels, along with several options for establishing site-specific Impact to Groundwater Soil Remediation Standards. The NJDEP also issued guidance regarding compliance and/or remediation options to address the contamination.  One such option is the installation of a low-permeability cap to prevent migration to groundwater.

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New Jersey Continues to Lead the Regulation of PFAS

Manko Gold Katcher & Fox
John F. Gullace and Darryl D. Borrelli

September 11, 2018

While the Federal Government continues to debate whether and how to regulate per- and polyfluoroalkyl substances (“PFAS”), New Jersey continues to lead the charge to regulate these substances. On September 4, 2018, the New Jersey Department of Environmental Protection (“NJDEP”) “adopted amendments to the New Jersey Safe Drinking Water Act (SDWA) rules … to establish … a maximum contaminant level (MCL) for perfluorononanoic acid (PFNA) of 0.013 micrograms per liter (ug/l) … .” (or 13 parts per trillion).

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For a Clean Slate, Don’t Forget About EPA’s Audit Policy

Kelley Drye & Warren LLP
Joseph J. Green

September 13, 2018

After almost a decade of neglect, EPA is once again actively encouraging facilities to utilize the agency’s Audit Policy to “address noncompliance in an efficient and timely manner.” Over the last several months, EPA has taken steps to promote use of the “e-Disclosure” system and to remind regulated entities of the benefits of the Audit Policy, which allows for substantial (near 100% in many cases) penalty reductions for violations that are self-disclosed and promptly corrected.

In announcing the launch of the new campaign on May 15th, EPA declared the agency’s “renewed emphasis on encouraging regulated entities to voluntarily discover, promptly disclose, expeditiously correct, and take steps to prevent recurrence of environmental violations.” This renewed emphasis is consistent with the current EPA’s focus on improving compliance through mechanisms, including voluntary self-correction, that achieve environmental goals more quickly and in a less costly, adversarial and time-consuming manner than traditional enforcement means.

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Potential Parent Company Liability Under CERCLA Based on Shared Services Model

Jones Day
Jane Borthwick Story and Mary Beth Deemer

September 12, 2018

In Short

The Situation: At least one court since Bestfoods has held that an organizational model whereby a parent company provides shared or centralized services to subsidiaries can result in direct liability for the parent company under CERCLA.

The Result: Parent companies may face direct liability under CERCLA depending on the structure of their shared services models.

Looking Ahead: Companies may want to consider how the structure of their shared services practices may impact their potential CERCLA liability.

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