New EPA Rules Part 2

To piggyback on Sean's post, the EPA finalized standards for mercury emissions and other pollutants from coal and oil-fired power plants yesterday.  Plant operators will have three years to comply with the new numerical emission limits.  The EPA claims these standards are one of the greatest accomplishments in EPA history, while some industry groups claim it will kill jobs.  Please read this CNN article discussing both sides of the issue.

Power and Toxins: Indiana Utilities May be Heavily Impacted by New EPA Rules

A report released by the Environmental Integrity Project on toxic emissions by power plants (h/t Jeff Lorenzo at the Indiana Environmental Law Report) ranks Indiana third in overall toxic emissions.  The rank is achieved by looking at Indiana's emission of eight different toxins (arsenic, chromium, cobalt, hydrochloric acid, lead, mercury, nickel, and selenium) and averaging out Indiana's rank for each toxin.  

New EPA rules are on the way dealing with mercury and other toxins.  Assuming this report is accurate, Indiana utilities may be significantly impacted by those rules.

The report also lists the 20 highest-emitting power plants for arsenic, chromium, lead, and mercury.  None are in Indiana.  Interestingly, the report is based on data that the power plants submit to EPA.  The plant listed as the highest single emitter of arsenic, chromium, lead, and mercury, Plum Point Energy Station in Arkansas, apparently misreported its data.  An errata at the beginning of the report states that, while Plum Point initially reported emissions 12,179 pounds of chromium and 759 pounds of lead, it now states that it emitted only 13 pounds of chromium and one pound of lead.  Oops!

Who Really Pays to Clean Up Leaks from Petroleum Tanks?

Excellent article by Thomas B. Langhorne in the Evansville Courier-Press about leaking underground storage tanks (or "LUSTs" as we call them in the trade) (hat tip to the Indiana Law Blog).  Recommended reading for anyone who suddenly finds themself responsible for a leaking tank, and anyone else with an interest in the topic. 

I do have one small bone to pick, though.  The article discusses how LUST cleanups are funded, and notes that a great deal of the money comes from the excess liability trust fund, or ELTF (what we usually refer to as "the elf" around here.)  The ELTF is funded mostly by the penny-per-gallon tax paid by distributors for petroleum products.  Bruce Palin of IDEM is quoted as saying that that tax is almost certainly passed on to customers at the pump.  So based on that, the article makes the following statement: "Who pays for the cleanups?  To a large extent the burden is on taxpayers."  I don't think this is quite accurate.  It's not "taxpayers" in the abstract who fund the ELTF.  The tax is paid directly by distributors.  So it's not like the sales tax you pay on your normal purchases, or even the sales tax you pay on the gas you buy, goes to the ELTF. 

Instead, the ELTF tax is passed on to you in higher gasoline prices.  Which, if you think about it, is exactly as it should be.  Your and my appetite for gasoline and other fuels is what has caused the USTs to be there in the first place, and if they weren't there, they wouldn't be there to leak.  The tax on distributors is a very efficient way of internalizing an externality.  You want gasoline, fine, but part of the price you're going to pay for it is the cost of cleaning up the problems it causes.  To the extent that depresses demand for gasoline (which I doubt is very much) that means fewer LUST problems. 

And to the extent that the owners of the tanks have benefited more from the sale of gasoline than has the rest of society, I can assure you that in my experience, those owners pay a lot more, in both dollars and in time and anxiety, than the penny a gallon they (probably) pass on to us.

But that quibble aside, it's a very good article and a welcome introduction to the way environmental problems play out in the real world.  Read the whole thing.

Environmental Issues for the 2012 Indiana General Assembly Session

Yesterday I attended, with fellow blogger Brianna Schroeder, the Indiana State Bar Association's 2012 Environmental Legislative Perspective. The panel of Vince Griffin (Vice President of Environmental & Energy Policy for the Indiana Chamber of Commerce); Jesse Kharbanda (Executive Director of the Hoosier Environmental Council); David Pippen (Chief Counsel to Governor Daniels); and Indiana State Senator Beverly Gard (Chair of the Senate's Energy and Environmental Affairs Committee) discussed what we can expect from the upcoming legislative session.

Perhaps most interesting was Senator Gard's list of environmental issues she anticipates the General Assembly addressing during her last year in the Senate:

- A mostly technical cleanup bill that will not dramatically change environmental policy

- A revised UST cleanup bill that will give IDEM authority to enforce the delivery/deposit rule

- Abolishing the four existing rulemaking boards in favor of a single enviromental rulemaking board of 12 members

- Tighter regulations for Solid Waste Management Districts

- Water withdrawal reporting

- Regional sewer districts

- Hydrofracing

Amendment to CERCLA Proposed by Federal Legislators

Several federal legislators recently proposed an amendment to the Comprehensive Environmental Response Compensation and Liability Act (CERCLA) to exclude manure from the definition of "hazardous substance" and "pollutant or contaminant" for purposes of CERCLA. H. R. 2997 defines "manure" to mean: (1) digestive emissions, feces, urine, urea and other excrement from livestock; (2) any associated bedding, compost, raw materials or other materials commingled with such excrement from livestock; (3) any process water associated with such items; and (4) any byproducts, constituents, or substances contained in, or originating from, such items or any emissions relating to such items. On September 26, 2011, the bill was referred to the House Subcommittee on Environment and the Economy. The full text of the bill is available here. A related bill, S. 1729 was introduced in the Senate and referred to the Senate Committee on Environment and Public Works on October 18, 2011. Additional information on the Senate bill can be viewed here.

Clean Water Act Rule Changes in the Works

Op-Ed in the New York Times from yesterday by former EPA administrator William K. Reilly.  EPA and the Army Corps of Engineers (which actually does a great deal of the day-to-day work of regulating development in wetlands and, thus, enforcing the CWA) are rewriting their rules in the wake of Solid Waste Agency v. Cook County and Rapanos v. United States.  Those two decisions essentially narrowed the scope of the CWA by limiting what waters the act covers.  Solid Waste held that an abandoned sand and gravel pit that had become a stop-over for migrating waterfoul was not covered by the act, and Rapanos decided that "waters of the United States" was limited to "relatively permanent, standing or continuously flowing bodies of water 'forming geographic features' that are described in ordinary parlance as 'streams,' 'oceans, rivers, [and] lakes.'" 

Reilly urges the agencies to hold the line and try to combat the above Supreme Court decisions.  Since these two cases looked to both statutory language and Constitutional limitations in making their decisions, I'm not sure how much leeway EPA and the Corps have to change things via rulemaking, but time, and litigation, will tell.

What Good is Law School?

This article in the N.Y. Times has received a lot of attention. It notes that law schools don't teach much in the way of practical, hands-on, day-to-day lawyering skills, instead focusing on teaching you to "think like a lawyer." I'm actually not sure this is quite accurate. I spend a great deal of my time as a lawyer reading case law, which is what I spent most of my time as a law student doing. I'm doing it differently in practice than I did in school, since I'm trying to win instead of just trying to figure out 1) what I'll say if I get called on and 2) what from this will be on the exam. But if I hadn't laid the groundwork in law school, reading cases would be a lot harder, as would I think drafting, arguing, and so many of the other things I do.

As a caveat, I don't do much transactional work, and I can definitely imagine that the skills I learned are more applicable to litigation. But on the other hand, some of the most "practical" things I'm learning in practice would be very difficult to teach in law school, and I'm not sure how much mileage you would get out of them. I mean, every court has different rules, and one of the most practical things you can do as a lawyer is to be familiar with and follow those rules to the best of your ability. But what's law school going to do to teach you that? Other than just say "know the local rules," which they did. Then there's client relations. I'm actually in a good environment for learning this, since here at PSRB us junior associates have a relatively large amount of client contact, but I don't know how you really "teach" that without dealing with actual, live clients and their concerns. I suppose clinics are supposed to help with this, but I never did one.

I think the biggest problem with legal education is the lack of focus on teaching people how to write. I had done a fair amount of writing before law school, and this was a huge advantage. This lack of focus is surprising since writing is such an important skill for me in practice (though maybe it's not for others? I don't know.) The only writing class I took, Legal Research and Writing, wasn't even graded! I think more emphasis on writing, especially in the typical doctrinal classes like contracts, torts, etc., would be a good thing.

But over all I feel like law school prepared me fairly well for life as a litigator in a medium-sized to large private law firm. Of course, this is probably the job that legal education was designed to help people do, since the mega-firms are a thing of the very recent past, and there was definitely an emphasis on private, civil law as opposed to public and criminal law at school.

Anyway, read the whole thing. The stuff about law school faculty is also very interesting.

Green Thanksgiving

In honor of Thanksgiving, here are some ways to have an environmentally-friendly holiday courtesy of the Indiana Department of Environmental Management and the Fort Wayne Journal Gazette:

- Avoid disposable utensils, plates, and napkins

- Use reusable or paper grocery bags

- Recycle aluminum, glass, and plastic

- Wash a full load of dishes without pre-washing

- Conserve energy by powering down electronics when not using them and turning off lights when leaving the room

More Indiana Spine Group v. Pilot Travel Discussion

The Indiana Lawyer's take on today's decision: Justices rule on applicable statute of limitations The Indiana Lawyer

Congrats to Colin Connor!

for a win before the Indiana Supreme Court in Indiana Spine Group v. Pilot Travel Centers, LLC. Colin worked with Fred Emhardt and Shelley Jackson on this case, which, correct me if I'm wrong, Colin, did not have anything to do with environmental law.  We do a lot of environmental law, but we do a lot of other stuff too. Instead, it was about a topic which will no doubt have all of our non-lawyer readers rushing to click on the link, the statute of limitations applicable to health care providers under Indiana's Worker's Compensation statute.

That may not sound scintillating, but I went to the oral argument, handled beautifully by Fred, and I thought it was pretty interesting. Health care providers had provided services to injured workers, but filed claims outside of the alleged 2-year statute of limitations, which runs from the date of the accident. The Supreme Court held that that statute applies only to the injured worker, not to the providers. The providers get the 10-year, catch-all statute that applies to anything that doens't otherwise have a statute of limitations. Way to go Colin, Fred, and Shelley!

Environmental Litigation in the News: California Environmental Law Has Unintended Consequences

Interesting article in the L.A. Times on how businesses, especially real estate development businesses, are using an environmental protection law, the California Environmental Quality Act, to battle the competition. 

The law was originally intended as a state version of NEPA:

CEQA dates from 1970, when then-Gov. Ronald Reagan signed a law creating a process of public review and environmental mitigation for all state-funded projects. The law's application was significantly broadened after activists sued under CEQA to block a privately funded condominium project in the Sierra. The California Supreme Court's ruling in 1972 that CEQA applied to private projects that required action by a public body — like a zoning change or a variance — was later codified by the Legislature.

 But it's allegedly been used by some creative litigators as a weapon against business competitors:

To halt a competing project near USC, Conquest Student Housing turned to a legal weapon that one of its co-owners allegedly compared to a crude bomb: cheap and destructive.Conquest owned 17 buildings that rented to USC students. When the developer Urban Partners proposed erecting a new complex to house 1,600 students, Conquest sued under California's landmark environmental law.

It then filed similar challenges to unrelated Urban Partners projects elsewhere in the state. Conquest withdrew its challenges only after Urban Partners filed a federal racketeering lawsuit.

***
In papers filed with the racketeering lawsuit, Urban Partners alleged that a Conquest official warned another competitor that "we should think of him and Conquest like 'Al Qaeda,' adding that it does not cost a lot to build a 'bomb' and cause extensive damage to a development project, and that it only takes a single person to cause serious harm to real estate projects using CEQA."

Conquest officials did not return a call for comment or respond to multiple emails. Jack Rubens, the Los Angeles attorney who handled only the initial complaint against the Gateway project for Conquest, said: "We had very solid grounds for filing that lawsuit."

 I obviously have no way of knowing whether the allegations against this one company are true.  But the article contends that it's become something of a strategy for businesses, and others groups such as unions, to use this environmental statute as a weapon against projects that the business or union opposes for some non-environmental reason.  So much so that there is an effort to change the law.  Read the whole thing, it's quite interesting.

New EPA Program To Redevelop Contaminated Properties

On November 4, 2011, the U.S. Environmental Protection Agency (“EPA”) announced that it will team with the U.S. Department of Energy’s National Renewable Energy Laboratory (“NREL”) as part of the RE-Powering America’s Land Initiative to evaluate the feasibility of developing renewable energy projects on Superfund, brownfields, and former landfill or mining sites. The project will study the feasibility of developing wind, solar, biomass, and geothermal energy at 26 sites across the country, including the Newport Chemical Depot in Newport, Indiana (a deactivated Army chemical production plant and chemical agent destruction facility).

(Photo from: U.S. Army Chemical Materials Agency)

The 26 sites are at varying stages of assessment and cleanup. Superfund sites are the most complex hazardous waste sites. Brownfields are not as troublesome as Superfund sites, but are sites where redevelopment may be complicated by environmental issues.

The joint venture pairs EPA’s environmental expertise with NREL’s renewable energy expertise. The project will invest approximately $1 million to revitalize abandoned sites, create jobs, energize communities, and reduce greenhouse emissions. Mathy Stanislaus, the assistant administrator of EPA’s Office of Solid Waste and Emergency Response says, “These studies are the first step to transforming these sites from eyesores today to community assets tomorrow.”

This new program is likely the first of many in the Midwest. EPA’s regional administrator, Dr. Susan Hedman, announced at a recent meeting with Indiana industry groups that Region 5 (the Great Lakes region) has the most brownfields sites of any region in the country. Dr. Hedman indicated that it was one of her personal priorities to see these sites rehabilitated and ultimately used for the development of “green infrastructure.”

These types of initiatives create incentives for individuals and companies to come up with creative ways to redevelop abandoned properties and promote sustainable energy. The attorneys at Plews Shadley Racher & Braun LLP have represented these types of clients for over 20 years. In addition to many other forms of representation, we represent clients in the sale, purchase, and remediation of environmentally-distressed properties.

To read EPA’s press release regarding this initiative, click here.

This article should not be construed as legal advice. Consult an attorney if you have questions about the redevelopment of potentially contaminated property.

Indiana's Environmental Legal Action Statute Forces Plaintiffs to do their Homework

If you own property that turns out to be contaminated, in Indiana under most circumstances, you will be liable for the cost of cleaning up that property.  Present-day owners are liable for such cleanups because they are the ones who primarily benefit from the property.  The cleanup will de-contaminate their land, which will make it more valuable, and especially if the activity that gave rise to the pollution is still ongoing (the drycleaner is still operating, the gas station is still dispensing, or the factory is still turning out widgets), the present owner gets the economic benefit of whatever activity caused the contamination.  It is better that the owner should bear the cost than all of the rest of us, who get a much more diffuse benefit. 

But what if you didn’t cause the contamination?  What if the contamination occurred 30 years ago, before you even owned the property, and hasn’t been added to since then?  Well, you’re still liable as a present owner.  But you may not be totally out of luck.  Indiana’s Environmental Legal Action (“ELA”) statute, Ind. Code § 13-30-9 et seq., authorizes suits to recover removal and remedial action costs (basically, cleanup costs) from persons who caused or contributed to the release of a hazardous substance or petroleum into the environment.  Yay!  Now all you need to do is find people who “caused or contributed” to the contamination, and go after them!  Unfortunately, recent court decisions interpreting this statute have complicated things.  The same rationale that imposes liability on current owners has not been applied in the context of the ELA.

 

In Neal v. Cure, 937 N.E.2d 1227, 1234 (Ind. Ct. App.2010) the court held that “cause or contribute” in the ELA is intended to impose liability only on those “responsible for creating contaminations.”  In that case, the Cures rented their property to tenants who ran a dry-cleaning business.  The dry-cleaning business allegedly contaminated a neighboring property owned by the Neals with perchloroethylene (“PCE”).  The Neals sued the Cures under the ELA, but the court held that since the Cures hadn’t actually spilled the PCE themselves, and didn’t know it was being spilled, they had not “caused or contributed” to the PCE contamination, and were thus not liable under the ELA.

The reasoning behind imposing liability for clean-up of contamination on present-day property owners is not applied to former owners, even if they owned the property at the time the contamination occurred.  As a practical matter, ELA suits involve a great deal more fact research than they otherwise would.  Finding former owners is relatively easy through simple title searches.  But finding former tenants can be much more challenging, and requires more creativity (and, unfortunately, more expense).  Just because you’ve found the person who owned the property when the contamination occurred doesn’t mean you’ve found a party from whom you can recover.

This article should not be construed as legal advice.  Consult an attorney if you have questions about the ELA or other environmental issues affecting your property.

Leaking USTs Still a Problem in Indiana

I went to high school at a small school in the middle of a cornfield in Monroeville, Indiana.  So  a recent story in the Fort Wayne Journal Gazette regarding leaking underground storage tanks (“USTs”) at an abandoned gas station in Monroeville (population of 1,235 as of the 2010 census), jumped off the page at me.  The title of the article said it all: “Cleaning up Leaky Problem.”  Although this particular story hit close to home for me, this is a problem that exists throughout the Midwest.

Abandoned gas station. (photo from www.michigan.gov/deq)

According to the Indiana Department of Environmental Management (“IDEM”), there are over 2,100 leaking USTs in Indiana—and this is just the number of reported leaking tanks.  Currently, IDEM regulates about 20,000 UST facilities in Indiana.  However, it wasn’t until laws were passed in the late 1980s that USTs had to be registered with the government, and it wasn’t until the 1990s that USTs had to meet certain requirements designed to reduce the risk of a release.  Indiana’s UST regulations (329 IAC 9) apply only to USTs and piping that stores petroleum or hazardous substances.  (Of course, like any regulation worth its salt, this one has certain exceptions—small USTs and home heating oil USTs are just two examples).  Under Indiana law, UST owners must register their tanks with the state.  The state imposes certain reporting requirements on the tank owners, including but not limited to providing information to the state on leak detection, spill and overfill prevention, and corrosion prevention. 

Two years ago, Indiana received $4 million in federal stimulus money to fix leaking USTs.  The money has been allocated to 28 chosen sites.  A large portion of those sites are abandoned UST sites.  Many times, property owners are not even aware they have a tank buried under their property, but if the tank contained petroleum or a hazardous substance, it could be a ticking time bomb.  Once a leak is discovered, it must be reported to the state.  The leak may require remediation, which can range from soil excavation to allowing the petroleum to naturally degrade.  IDEM estimates the cost of the average UST clean up at $200,000.

Excavated UST leaking product. (photo from www.epa.gov clipart)

Federal stimulus funds are not the only way to pay for the remediation of the leaking USTs.  In Indiana, tank owners are required to pay registration fees, which go to the state Excess Liability Trust Fund (“ELTF”).  The ELTF establishes a mechanism to reimburse money spent by eligible UST owners and operators on the clean up of petroleum releases from USTs and indemnification of third parties.  To be eligible to receive financial assistance under the ELTF, the owner or operator must be in compliance with the regulations for registration, maintenance, record keeping, fee payment, and release reporting.  For more information on the ELTF, click here. Insurance proceeds and former owners are other potential sources of funding for a clean up.  Cleaning up these abandoned USTs allows for the property owner or surrounding community to finally redevelop that land.  As the Journal-Gazette article points out, this leaking problem is still a major problem in Indiana and throughout the Midwest

To read the full Journal-Gazette article, click here. 

This article should not be construed as legal advice.  Consult an attorney if you have questions about your USTs.