U.S. Supreme Court Rules Unanimously in Favor of Monsanto

The United States Supreme Court ruled unanimously today in Bowman v. Monsanto, the case that pitted an Indiana soybean farmer against Monsanto. The Court held that the farmer could not use patented genetically modified soybeans to create new seeds without paying the company. A full copy of the decision is located here. I wrote about this case back in October of 2012 when the Supreme Court granted the farmer's petition for certiorari. Monsanto provides its take on the opinion here.  

A Game Changer for Environmental Due Diligence?

New standards will be released this year that will dramatically expand the scope of environmental due diligence that must be performed at some sites in order to ensure prospective purchasers of property are protected from CERCLA liability for past releases.  The American Society for Testing and Materials (ASTM) is preparing to release its revised standard for Phase I Environmental Site Assessments (ESAs), which will be known as ASTM E 1527-13, some time this spring or summer.  The most significant change will be the incorporation of vapor mitigation screening requirements, which will require the identification of sites up to 1/3 mile away that pose potential vapor intrusion risks for the subject site.  This will vastly expand the scope of Phase I ESAs and will likely increase the costs and timing for completion of the Phase I process.

The majority of the revisions to the standard simply clarify existing definitions and add additional terms to help streamline and simplify the process, including 1) redefining Recognized Environmental Conditions (RECs); 2) redefining Historical Recognized Environmental Conditions (HRECs); 3) adding a definition of Controlled Recognized Environmental Conditions (CRECs); and 4) clarifying the requirements and expectations of a regulatory file review.

The current Phase I standard, ASTM E 1527-05, was released in 2005, and since that time one of the major questions that has been debated among environmental professionals is whether vapor mitigation must be considered during a Phase I assessment.  The 2005 standard is not clear on this point, but most professionals had determined that vapor mitigation did not need to be considered because it is an Indoor Air Quality issue, which are generally outside the scope of Phase I assessments.  The new revision will make clear that vapor intrusion risks should be considered in a Phase I ESA.  ASTM has a separate standard for determining the likelihood of vapor migration risks at a site, which defines the "Area of Concern" in which suspected or known contaminated sites must be identified.  The area is 1/3 mile for sites with non-petroleum contaminants (COCs) and 1/10 mile for sites with petroleum COCs only.  The environmental professional performing the Phase I can use his or her discretion to exclude certain sites based on site-specific factors (i.e. hydraulic or physical barriers, soil characteristics, etc.) but there is always some risk involved in excluding properties within the defined area of concern.

The revised standard was recently submitted to the EPA, which will review the proposed changes to ensure that the standard is still consistent with the AAI rule.  If EPA determines that the revisions are acceptable for AAI compliance and approves the standard, it will then be published by ASTM.

For additional information, contact Dan Cory.

EPA Moving Forward With Lead-Abatement Regulation for Commercial Buildings

The United States E.P.A. is moving forward with preliminary rule-making activities for the regulation of lead-based paint hazards on and in public and commercial buildings (those built prior to 1978) under the Toxic Substances Control Act (TSCA).  The regulation of commercial structures will impact a number of real estate practitioners involved with pre-1978 buildings - including property owners and managers, construction and real estate contractors, and other industry professionals.

The EPA already has a Lead Renovation, Repair, and Painting (RRP) Rule in place for pre-1978 residential properties and child-occupied facilities, which imposes stringent disclosure obligations on owners and property managers and requires renovations, repairs and painting to be performed by EPA-certified contractors with training in lead abatement practices.  This rule has added significant costs to the ownership and maintenance of older homes and has exposed property owners and contractors to significant civil penalties for failing to comply with the rule.

The EPA will be collecting information from the public and industry professionals regarding lead-based paint in commercial and public buildings until April 1, 2013.  Specifically EPA is seeking comments on the manufacture, sale and use of lead-based paint post-1978; use of lead-based paint in or on public and commercial properties; how often renovations were performed on public and commercial properties and the practices used in such renovations; estimates of the amount of dust created and possibly transported from the outside to the inside of the building; and the economic impact that the regulation would have on affected businesses and stakeholders - in particular small businesses.

The information gathering is designed to assist the EPA in determining whether renovations, repairs and painting activities in commercial and public buildings create lead-based paint hazards.  The EPA is required to either determine that no such risks exist or sign a proposed rule similar to the RRP rule for residential properties by July 1, 2015.

The EPA is planning to hold a public meeting regarding the potential commercial and public building rule on June 26, 2013.  Additional details regarding the public meeting will be available in the spring.

The full text of the request for information can be found here.  

 

Meth Busters

Image from the Indiana State Police Meth Suppression Section's website

A recent article in the Indiana Lawyer discusses the Indiana General Assembly's attempts to curb the state's growing methamphetamine problem.  Over the past ten years meth labs found by Indiana law enforcement have increased from 732 in 2002 to 1,726 in 2012.  In 2012, more than 10% of those meth labs were found in two of Indiana's 96 counties: Madison County (96 labs) and Vanderburgh County (81 labs).  The problem is so bad in Madison County that Rodney Cummings, the Madison County prosecutor, states that 35% of his docket is meth related.  

Six new bills addressing meth have been introduced during the 2013 session.  All six target ephedrine and pseudoephedrine, the main ingredients used in manufacturing meth.  Two of the bills would reduce the amount of medication containing these ingredients a person could purchase.  One such bill proposed by Sen. Carlin Yoder, a Republican from Middlebury, would limit each person to 61.2 grams of ephedrine and pseudoephedrine per year, increase criminal penalties for giving these ingredients to someone expressly for manufacturing meth, and prohibit any meth-related criminals from possessing these ingredients without a prescription for seven years.  The four other bills would make ephedrine and pseudoephedrine controlled substances that could only be purchased with a prescription.  In 2005, Oregon took such a step, which has led to a significant drop in meth labs.  Cummins believes that a similar result would occur in Indiana.  One such bill, proposed by Randy Head a Republican from Logansport, would make the two ingredients Schedule III controlled substances.  This bill, however, will not get a hearing this session.  I will continue to track the six proposed bills to see if the Assembly enacts any changes to Indiana's meth laws.    

With an increase in meth manufacturing comes an increase in meth lab explosions.  These explosions cause significant property damage, injuries, and even deaths.  I, along with fellow Monitoring Well authors, Brianna Schroeder and Sean Hirschten, and other attorneys at Plews Shadley Racher & Braun LLP, assist clients with cleaning up their properties after a tenant's meth lab explodes.  Often there is insurance coverage for these types of cleanups even if the policy contains an exclusion for illegal activities.  The firm also represents environmental consultants that clean up exploded meth labs.  If you are a property owner whose property has been damaged by a tenant's meth lab, please do not hesitate to contact our firm with any questions.  Also, for more information on Indiana's efforts to curb meth abuse, please refer to the Indiana State Police's and the State of Indiana's websites.     

Wine is Good for You...and for Agri-Tourism

This post is less about environmental litigation and more about the environment of wine.  Indiana wine grapes, in particular.  The federal government (specifically the Alcohol and Tobacco Tax and Trade Bureau or "TTB") recently designated 2,000,000 acres in southern Indiana as a viticultural area, to be called the "Indiana Uplands."  An "American Viticultural Area," or "AVA" is a designated wine grape-growing region distinguished by its geographic features.  The borders of the recently-designated AVA in Indiana runs from the Morgan-Monroe County line near Bloomington south to the Ohio River, a distance of just over 100 miles.  The soil, climate, and topography in this swath of land are conducive for growing great wine grapes.

This AVA designation indicates the growing importance of agri-tourism in Indiana.  The designation also allows vintners to better describe the origin of their wines and to allow consumers to better identify wines they want to purchase.  For a wine to be labeled with a viticultural area name, at least 85% of the wine must be derived from grapes grown within the viticultural area represented. The wine must also meet the other conditions in 27 CFR 4.25(e)(3) (discussing wine name and label requirements).

For more information on the recent designation of the Indiana Uplands, see the details of the TTB's determination in the Federal Register here.  The Hoosier Ag Today provides a bit more information about the economic impact of the designation in its top story today, located here.

Heightened Federal Pleading Standards and Environmental Long-tail and Toxic Tort Claims

I wrote an article with my colleague, Greg Gotwald, that was recently published in the American Bar Association's Section of Environment, Energy, and Resources' newsletter Trends.  The article provides an outline of how federal district courts have been handling environmental claims in light of Iqbal and Twombly's requirement that a plaintiff show plausible--not possible--entitlement to relief.  This can be hard to do when details of when and where the contamination originated may not be known at the time a complaint is filed.  The take-away of the article is that the more information a plaintiff can provide in a complaint, the better chance it has of defeating a 12(b)(6) motion. If defending an action, then Twombly and Iqbal provide justification for dismissing speculative claims.

Read more here.

President Obama & The Environment

I know that everyone was sick and tired of the media coverage leading up to the presidential election, so I thought I’d add a bit more discussion to the mix.  Seriously though, I thought I’d take a look at what President Obama’s second term has in store for environmental policy.  Interestingly, climate change was not mentioned once in the three presidential debates—the first time that has happened since 1984.  President Obama, however, did mention climate change in his acceptance speech, in which he stated: "We want our children to live in an America that isn't burdened by debt, that isn't weakened by inequality, that isn't threatened by the destructive power of a warming planet.”

On November 7, 2012, a day after President Obama was reelected, Audubon Magazine published the president’s answers to ten questions on the environment.  In the Audubon interview, President Obama called climate change "one of the biggest issues of this generation.”  Although most of the article dealt with what the president has done in his first term to address climate change, he did address some of his future plans.  The president proposes increasing limits on new fossil-fuel-fired power plants, limiting greenhouse gas emissions from automobiles, investing in renewable energy, and reaching emission limit agreements with other countries.  

                

One area where President Obama conflicts with environmentalists is on drilling in the Arctic.  The president believes that drilling in the Arctic must be a part of America’s “all-of-the-above energy strategy.”  He would, however, prevent drilling in the Arctic National Wildlife Refuge.  Another potential source of conflict with environmentalists is the Keystone oil pipeline.  The president’s administration is conducting a thorough assessment of the pluses and minuses of the proposed pipeline, while the Audubon interviewer stated that the pipeline “would transport what some consider to be the dirtiest oil in the world and cause destruction of boreal forest.”

                

The president does not believe that we have to choose between a clean environment and a thriving economy.  He believes that clean energy investment will lead to a $2.3 trillion global market.  Industry groups, however, disagree.   Industry groups fear that increased regulation of coal and other fossil fuels will hurt the economy and raise prices for consumers.  For more energy industry perspective, please click here. 

                

If you have questions about how new proposals, regulations, or laws will impact you or your business, please contact an environmental attorney.