Category: Environmental Law

The Legal Challenge to the SEC’s Conflict Minerals Reporting Regulations

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In the 2010 Dodd-Frank Act, the United States Congress required, inter alia, the SEC to promulgate regulations requiring certain manufacturers to trace the sources of tin, tantalum, tungsten and gold that are contained in products they manufacture or contract to manufacture to allow them to report yearly to the SEC whether the products are “not DRC [Democratic Republic of the Congo] conflict free.” Conflict free was defined by Congress as meaning the products do not contain minerals that finance or benefit violent armed groups in the DRC or adjoining countries. Congress required the SEC action because “it [was] the sense of Congress” that the exploitation of conflict minerals from that region was financing armed groups that engaged in “extreme levels of violence” creating “an emergency humanitarian situation.”

Various industry groups lobbied heavily against the passage of the Dodd-Frank Act and later submitted comments during the SEC’s rulemaking challenging the proposed regulations’ due diligence and reporting obligations as unduly burdensome and costly. After considering the comments, the SEC, where it would not run afoul of the Congressional mandate, did reduce some of the burdens that would be imposed on industry. However, the SEC acknowledged that compliance with Congress’s intent precluded reduction of other burdensome aspects of the regulations. The SEC promulgated the regulations in August 2012.

In October, 2012, the National Association of Manufacturers, along with the U.S. Chamber of Commerce, commenced a legal challenge to the conflict minerals regulations. Since then, voluminous briefs have been filed by NAM and the SEC along with briefs by numerous interested groups. These briefs outline the parameters of the dispute and suggest that NAM faces an uphill battle.

The crux of the industry’s challenge is that the SEC failed to properly quantify the benefits and costs associated with the regulations and thereby acted arbitrarily and capriciously in promulgating them. NAM claims the reporting requirements will not aid the DRC and could cripple the region economically. It also claims that the SEC failed to agree to certain revisions that would have lessened the burdens and costs on business, like carving out a de minimus exemption for manufacturers whose products used only trace amounts of conflict minerals and predicating a burdensome due diligence requirement on whether a manufacturer had “reason to believe” that their products contained conflict minerals that may have originated in the DRC as opposed to whether the products “did originate” there. NAM asks the court to strike the entire regulation and send the SEC back to square one.

The SEC responds that it was not its responsibility to quantify the benefits of the regulations, noting that Congress had made that calculation and had determined that the benefits justified the reporting requirement Congress mandated. In fact, the SEC admitted it could not quantify the benefits because it lacked data to do so. Rather it performed a qualitative analysis. It also defends its rejection of NAM’s proposed revisions that would have reduced the costs of compliance. The SEC noted, and various members of Congress agreed, that Congress had considered and rejected the de minimus exemption because it would defeat the purpose of the rule. Congress concluded that thousands or millions of trace amounts can add up to a significant amount, the trade in which would undercut the rule’s purpose of stopping the flow of money to armed insurgents in the region. The second NAM proposal was rejected because in the SEC’s view, it would encourage willful blindness by industry. That is, if a business encountered a red flag suggesting the sources of its minerals were not conflict-free, it would investigate no further, so as to avoid a determination that they did originate there.

An interesting issue concerns the regulation’s imposition of the reporting requirements not just on manufacturers but also to those who contract for the manufacture of goods. NAM believes that this extension of the reporting requirements is contrary to the express language of Dodd-Frank. It supports its position through application of rules of construction routinely used in interpreting statutes and its argument is logical. However, former and current members of Congress came to the SEC’s aid on this issue claiming in their brief that they intended to include those who contract for the manufacturer of goods, again to prevent exemptions that would significantly undercut what the regulations sought to achieve.

Oral arguments are scheduled for May 15, 2013. It will be very interesting to see how receptive the panel from the DC Circuit is to NAM’s arguments. Asking the court to scuttle the entire regulation, the parameters of which Congress as a matter of policy framed, makes NAM’s challenge all the more difficult.

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Replication without Human Intervention: Lessons from Monsanto v. Bowman

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Until now, the practicing of an invention needed some direct form of human action; someone was needed to “do something” to bring the invention into existence, as well as replicate it by making more (in the case of a physical object) or performing it again (in the case of a method). However, this may no longer be necessary in all instances. At least in the case of some biological technologies, once an invention has been created by a human, further human intervention may no longer be needed for replicating the invention. In these instances, does a patent owner lose the right to exclude future uses, sales, offers for sale or importations of such an invention?

In Monsanto v. Bowman, the Supreme Court is poised to bring some clarity to this question. Monsanto Company designs and manufactures herbicide-resistant soybean seeds and related technology. Monsanto sold patented seeds to farmers for growing and resale as commodity items to be used in such things as public-school lunches and animal feed. Such sales were made under license agreements that allowed the beans to be sold without any ongoing restrictions on the use of those beans.

Vernon Bowman is a soybean farmer. Bowman purchased these beans and replanted them as second-generation seeds, which were the products of seeds purchased from a licensed Monsanto technology distributor.

Monsanto sued Bowman for patent infringement, arguing that the beans were products of Monsanto’s patented herbicide-resistant seeds and that, by planting them instead of purchasing new seeds, Bowman violated the Monsanto Technology Agreement for the seeds. The U.S. District Court found that Bowman’s activities infringed upon Monsanto’s patent and awarded damages to Monsanto for violation of its patented technology. The Federal Circuit agreed and upheld the decision, holding that Monsanto’s patent covered both the original seeds and a product of the original seeds, such as those second-generation beans grown by Bowman.

Bowman appealed, arguing that, under the doctrine of patent exhaustion, Monsanto’s patent rights were exhausted upon its initial sale of the seeds that Bowman later purchased from the licensed distributor, and that use of progeny seeds is an expected use of the product. In response, Monsanto argued that in the case of self-replicating technologies, such as seeds that grow and produce more seeds, the patent extends to the underlying technology (i.e., herbicide resistance) and not only to the seed itself.

The important question raised in this case is whether an exception to the doctrine of patent exhaustion for self-replicating technologies is needed and/or warranted. While this question is clearly important to the biotechnology and agricultural industries, it also has the potential to significantly affect the software and robotics industries. For example, as robotics and artificial intelligence become increasingly sophisticated in their abilities to adapt and “grow,” it does not seem too outlandish to think that, one day, these may also become self-replicating technologies.

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Vapor Intrusion Regulation and Environmental Remediation

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EPA recently issued two draft guidance documents on vapor intrusion and will accept comments on them through May 24, 2013. If finalized in current form, these guidance documents would formalize and enhance EPA’s existing practice of prioritizing vapor intrusion as a central issue in environmental remediation and could result in increases in the expense and effort required from responsible parties to achieve compliance for cleanup of contaminated sites conducted under federal authorities such as CERCLA or RCRA. They could also be highly influential in clean-ups overseen by state regulators.

Lastly, while intended for use in the regulatory context, recommendations in these guidance documents may be used to establish a standard of care in litigation involving vapor intrusion (e.g., RCRA citizen suits or common law toxic tort litigation).

Vapor intrusion is the migration of hazardous vapor from contaminated soil or groundwater into an overlying building.  It is considered potentially harmful to human health, creates risks in real estate transactions and financing due to potentially diminished property values and environmental liability, increases exposure in toxic tort litigation, and, in the federal regulatory context, is considered a pathway of possible exposure that must be evaluated as part of the evaluation and selection of a site remediation plan.

The first of these two guidance documents was prepared by EPA’s Office of Solid Waste and Emergency Response (OSWER) and is a comprehensive set of technical and policy recommendations regarding indoor air contamination arising from subsurface-source vapor intrusion attributable to all classes of volatile, or vapor-forming, chemicals (VI Guidance).[1]  The VI Guidance modifies and expands draft guidance on vapor intrusion issued by the agency in 2002 (2002 Draft VI Guidance), which provided general direction for evaluating the potential for vapor intrusion pathways at cleanup sites but omitted any measures for delineation and mitigation of potential risks.[2]  In a 2009 report, EPA’s Office of the Inspector General (OIG) recommended that EPA update the 2002 Draft VI Guidance to reflect the numerous technical and policy advancements made since that time in both the public and private sectors.

The second guidance document was prepared by EPA’s Office of Underground Storage Tanks (OUST) and is focused on investigations and assessments at petroleum contaminated sites where vapor intrusion by petroleum hydrocarbons may occur (Petroleum VI Guidance).[3]

VI Guidance

The VI Guidance presents a step-by-step vapor intrusion assessment plan, beginning with gathering and evaluating data for an initial conceptual site model, through collecting and evaluating additional data from various sources, and culminating in a risk assessment.  According to EPA, the VI Guidance addresses the recommendations made in the OIG’s 2009 report and takes into consideration more recent guidance developed by states and other technical working groups.  Some of the elements in this document may well trigger an increase in expense in addressing VI risks and lengthen the site evaluation process.

·        Superfund Five-Year Reviews: At Superfund sites that require five-year reviews,[4]EPA will gather data on vapor intrusion pathways and assess the sufficiency of the selected remedy for follow up in the five-year review report.  Therefore, according to the VI Guidance and related Directive 9200.2-84,[5] the five-year review process could result in the re-opening of established Superfund remedies to address vapor intrusion, “even if vapor intrusion was not addressed as part of the original remedial action.”[6]

·        Preemptive Mitigation/Early Action: EPA recommends consideration of engineered methods to reduce vapor in buildings (e.g., by installing a radon-type detection system or vapor barriers), even in the absence of all pertinent lines of evidence necessary to characterize the vapor intrusion pathway.  Any such measure would be an early effort to cut off exposure before completing investigations, but would not address the subsurface vapor source.  The agency’s rationale is that installation of engineered exposure controls in buildings is typically more cost-effective and less disruptive than conventional vapor intrusion investigations and subsurface characterization.  Once preemptive mitigation measures are installed, however, that may conclude only an initial step rather than complete remediation.  In the context of brownfields programs, treating preemptive mitigation now as only an interim solution may affect long term redevelopment plans.

·        Aggregate Noncancer Health Risk: Even when the exposure level for each contaminant at a site is below screening levels and it is assumed that each “acts independently (i.e., there are no synergistic or antagonistic toxicity interactions among the chemicals)”, the VI Guidance nevertheless proposes that a risk manager aggregate the individual noncancer health risks associated with each contaminant exposure to determine whether a response is warranted.  The aggregated risk is reflected in a “noncancer hazard quotient” that would ultimately drive the response.  This approach could be overly precautionary if the aggregated sum overstates the actual risks presented by the individual constituents.  Furthermore, the VI Guidance recommends use of multiple lines of evidence in calculating and evaluating these risks, a process that may prolong response decisions and negatively affect situations where quick resolution of VI issues is paramount (e.g., brownfield redevelopment projects).  On the other hand, evaluation of multiple lines of evidence may be more advantageous to the extent it provides for a more informed view of likely risk.

·        Background Levels: Time-integrated sampling of volatile chemicals (as opposed to short-duration, or “grab” sampling) at multiple locations in and around a site is, in EPA’s view, necessary to distinguish among potential sources of these chemicals (i.e., ambient sources, indoor sources, or vapor intrusion).  In the past, generic values of historic background concentrations have been used to characterize ambient or indoor source concentrations.  However, EPA now recommends against the use of these generic values, even those from peer-reviewed sources, and instead asserts that only site-specific data (e.g., sub-slab, indoor air, and ambient air sampling data) should be used.  This recommendation will likely lead to improved accuracy and better understanding of site conditions, while at the same time increasing the time and cost related to characterization efforts.

Petroleum VI Guidance

The 2009 OIG report expressed concern that EPA’s 2002 Draft VI Guidance did not address petroleum vapor intrusion at UST sites.  The proposed Petroleum VI Guidance seeks to address that concern for UST sites and RCRA-driven activities undertaken by private UST owners and operators.  In addition to the traditional chemicals found in petroleum products (such as benzene), the Petroleum VI Guidance would require consideration of vapor risks associated with gasoline additives (such as MTBE) and chemicals that develop from biodegradation of petroleum in soil and groundwater (such as methane).

As proposed, at least two parts of the Petroleum VI Guidance may, in comparison with past experience, result in increased response costs and delays for responsible parties.[7]  First, the Petroleum VI Guidance rejects the notion that a single sampling event is a sufficient basis to conclude that further vapor intrusion investigation is unnecessary because “periodic monitoring and sampling over more than one annual cycle is generally needed” to address fluctuations in groundwater levels and contaminant plumes over time.  Second, the Petroleum VI Guidance includes a number of recommendations that suggest EPA seeks to reduce reliance on models.  Specifically, when modeling requires the use of literature values due to the unavailability of site-specific data, EPA “recommends that an uncertainty analysis be conducted to provide error bounds on predictions of the computer model,” and that the results of any modeling exercise be verified with field data.

Considerations for Both Guidance Documents

In conclusion, both of these proposed guidance documents signal an increased focus on vapor intrusion within EPA.  As they are amended and finalized, there is a limited opportunity to comment on them to try to encourage a final guidance that is workable and effective for remediation of sites with vapor intrusion issues.  There may be ways to improve the guidance by clarifying where there is site-specific flexibility and where the guidance is overly prescriptive.

Notably, these guidance documents may help define the standard of care in the context of RCRA citizen suits or common law toxic tort litigation.  Clarifying key assumptions in the guidance may buffer some of that impact.

Even though these guidance documents are in draft form and will likely be subject to considerable comment, EPA regions and states can be expected to consult and employ them during what may be a long interval before they are finalized.  To the extent EPA or a state regulatory agency does so and an affected party disagrees with aspects of the guidance at issue, parties should be aware that the draft guidances are non-binding on their face.  The documents state that they do “not impose any requirements or obligations on the [EPA], the states, or the regulated community.”  Accordingly, parties should be free to suggest alternative, technically sound approaches to regulators.  Moreover, because these documents are solely drafts and have not been tested by external expertise that will be provided in public comment, reliance on them in their current state is arguably premature.

Given the potential long term impact on cleanup requirements, interested parties should evaluate the guidance and strongly consider submitting comments to EPA by May 24, 2013.  In light of the complex technical issues involved, interested parties may also wish to request that EPA extend the comment period.

[1] EPA OSWER, “Final Guidance for Assessing and Mitigating the Vapor Intrusion Pathway from Subsurface Sources to Indoor Air” (Apr. 11, 2013)

[2] EPA OSWER, “Draft Guidance for Evaluating the Vapor Intrusion to Indoor Air Pathway from Groundwater and Soils” (Nov. 29, 2002).  This draft document was never finalized.

[3] EPA OUST, “Guidance for Addressing Petroleum Vapor Intrusion at Leaking Underground Storage Tank Sites” (Apr. 9, 2013).

[4] Section 121 of CERCLA (42 U.S.C. § 9621) requires that remedial actions that result in any hazardous substances, pollutants, or contaminants remaining at the site be re-evaluated every five years to ensure that the remedy is and will continue to be protective of human health and the environment.

[5] “Assessing Protectiveness at Sites for Vapor Intrusion: Supplement to the ‘Comprehensive Five-Year Review Guidance’” (Nov. 14, 2012).

[6] In a related context, EPA officials have already acknowledged that later discovery of vapor intrusion at Superfund sites may trigger parties to litigate over whether site remedies provided for in consent decrees should be revisited under the reopener provisions in those decrees.  SeeInsideEPA, “EPA Official Says Vapor Intrusion May Drive Suits To Reopen Cleanup Pacts” (May 3, 2013), available at http://insideepa.com/201305032433234/EPA-Daily-News/Daily-News/epa-official-says-vapor-intrusion-may-drive-suits-to-reopen-cleanup-pacts/menu-id-95.html?s=mu. 

[7] These issues may also be relevant in scenarios involving vapor intrusion from sources other than those covered by the Petroleum VI Guidance.  However, because these points were emphasized in that guidance document, we highlight them here.

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Natural Gas Companies Settle Antitrust Suit Stemming from Joint Bidding

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On Monday, April 22, 2013, after rejecting the initial settlement agreement, Judge Richard Matsch (D. Colo.) approved a revised settlement of a suit brought by the U.S. Department of Justice (DOJ) against two energy companies for conspiring not to compete for mineral rights leases.  Gunnison Energy Corp. (GEC) and SG Interests I Ltd. and SG Interests VII Ltd. (collectively “SGI”) will each pay a fine of $275,000 to the DOJ to settle allegations of agreeing not to bid against each other in violation of antitrust law for natural gas leases on government land in western Colorado.  These fines are in addition to those related to alleged False Claims Act violations, for which SGI and GEC paid government fines of $206,250 and $245,000 respectively.  The new settlement is twice the amount of the fines in the original settlement.

McDermott Will & Emery wrote an article in February 2012 analyzing the DOJ’s initial complaint against the parties, and the competitive implications of joint bidding.  At the time, the parties had agreed to pay a total of $550,000 in fines.  The court rejected the settlement in December 2012 finding that it was not in the public interest.  “There is no basis for saying that the approval of these settlements would act as a deterrence to these defendants and others in the industry, particularly as GEC considers ‘joint bidding’ to be common in the industry.”  Further, the settlement amount was “nothing more than the nuisance value of [the] litigation.”  Additionally, as reflected in the newly approved deal, the court wanted the alleged Sherman Act violations and False Claims Act violations settled separately, with a payment for the Sherman Act claims separate from, and in addition to, any amount due under the False Claims Act.  At heart, it appears Judge Matsch wanted any settlement he approved to be meaningful enough to have a deterrent effect on future agreements.

This was the DOJ’s first challenge to an anti-competitive bidding agreement for mineral rights leases, but it is just one of the recent cases in which joint bidding activities have become the focus of antitrust scrutiny.  In Summer 2012, the DOJ opened an investigation into Chesapeake Energy’s acquisition of oil and gas properties in Michigan and the possibility that Chesapeake conspired with Encana Corp. to allocate bids on those properties.  In 2006, the DOJ began investigating the joint bidding practices of private equity firms in connection with leveraged buyouts.  That investigation led to class action suits against private equity firms.  One of those suits survived a motion for summary judgment last month.

It is important to note that the DOJ is paying attention to joint bidding practices and taking action.  As noted in the SGI/GEC matter, while joint bidding may in fact be common practice in the energy field, it is not necessarily lawful.  Each arrangement should be evaluated for potential anticompetitive effects.

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Watt’s New? Michigan Energy News

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Community Solar Success

Cherryland Electric Cooperative has installed 48 solar panels on a site adjacent to its offices in Grawn.  Individual customers have signed up to lease each panel for 25 years for a one-time fee of $470 per solar panel. A rebate of up to $150 will be given the customer to account for energy optimization credits. The customer will also receive a monthly billing credit for the electricity produced by the solar panel, which is expected to be at least 25 kWh per month. As many as 360 panels will be installed on the racking at the site, depending on customer support.

Energy Innovation with Nanoparticles

Grid Logic Incorporated of Lapeer is developing a low-cost superconducting wire for electric utility application. Using a new manufacturing technique, it will embed very fine particles into metals to induce superconductivity. This will reduce the cost of transmission lines, motors, wind turbines, and other electric devices. At Michigan Technological University in Houghton research on growing manganese dioxide nanorods may lead to new high performance electric capacitors. By minimizing internal resistance, such material will store more energy, allow extraction of energy more quickly, and operate longer between recharging. University of Michigan labs in Ann Arbor have added silver nanoparticles to increase solar cell efficiency by 8 percent. The nanoparticles also allow for thinner silicon layers, which means lower costs (ten times less silicon used) and flexible substrates for solar panels.

Annual Meeting of Energy Group

The Michigan Energy Innovation Business Council held its Annual Meeting on April 17 in Lansing and elected new Board members. The meeting featured a solar industry panel discussion and a keynote address on the Department of Energy’s New Clean Energy Manufacturing Initiative. The new Board is composed of top officials from Astraeus Wind Energy, Growth Capital Network, Novi Energy, Ecotelligent Homes, Dowding Industries, Advanced Energy Group, Dow Chemical Company, TOGGLED, Sakti 3, First Energy Finance, Wind Resource LLC, and Ventower Industries. These are companies already engaged in wind, solar, bioenergy, geothermal, energy storage, and energy efficiency businesses. Committees on policy and advocacy, membership and marketing, and market and business development were also formed. The group participated in all seven energy forums held around Michigan in February, March, and April.

Wind Buoy Goes Back into Lake Michigan

The Grand Valley State University Wind Sentinel research buoy, one of only three in the world, will be returned to Lake Michigan this month. It will be placed about seven miles offshore, northwest of the Muskegon Channel, for its third research season. The project is running short of funding, and its future activities beyond this year are uncertain. Project partners include researchers from: Michigan Technological University, who are studying wind turbulence; Michigan Natural Features Inventory, a component of the Michigan State University Extension program, who are studying bird and bat activity (and who confirmed for the first time ever last summer that bats do fly over the Great Lakes); and the University of Michigan, who are conducting research on large data sets.

DOE Renews MSU Biofuels Funding

The U.S. Department of Energy has awarded $25 million per year for another five years to fund the Great Lakes Bioenergy Research Center. Michigan State University is a partner in the Center which is physically based at the University of Wisconsin-Madison. The Center supports nearly 400 researchers, students and staff working in disciplines ranging from microbiology to economics to plant biology to engineering aimed at advanced cellulosic biofuels technologies.

Courts to Rule on Wind Issues

Seventeen neighbors of the Consumers Energy Lake Wind Energy Park have filed a complaint in Mason County claiming the wind farm has negatively impacted property values and caused sleep disruption, headaches, ringing ears, dizziness, stress, extreme fatigue, nausea, and other physical and mental problems. A cease and desist order is being sought, together with damage awards, in a jury trial. In Clinton County, Forest Hill Energy-Fowler Farms LLC is suing Essex, Dallas, and Bengal townships for adopting ordinances that effectively block its wind farm development. The county had previously granted a special land use permit to Forest Hill Energy for its $120 million wind project, and the townships have moved to override that permit.

Energy Forums Concluded

With the conclusion of the last of the seven energy forums ordered by Governor Snyder in November, the next stage of fact-finding is underway. The schedule describes the May-June period as the time when the two forum chairs will be “outlining reports in each program and laying out plan for development of information that is not yet available.” The following three months is reserved for “compilation/development of information.” October-November will see the release of draft reports for public feedback. Final reports will be released in the November-December timeframe. Governor Snyder will be “making his comprehensive recommendations regarding Michigan’s energy future in December of 2013.”

Orisol Energy US, Inc. of Ann Arbor is one of the companies selected to bid on leases for submerged land in the Atlantic Ocean for offshore wind developments in the coastal waters of Virginia Midwest Independent System Operator (MISO) reported that on November 23 more than a quarter of its total generation came from wind turbines at 10,012 MW  The Michigan Public Service Commission has approved a special rate contract between Cloverland Electric Cooperative and the Manistique paper mill of MPI Acquisition LLC  State Senator Hoon-Yung Hopgood has introduced a bill to increase Michigan’s renewable energy standard to 22 percent by 2022  Mascoma, cellulosic ethanol maker with plans for commercial operations in the U.P., has withdrawn its $100 million initial public offering citing market conditions

Exporting Pure Michigan

Two years ago President Obama challenged the nation to increase its exports. American exports are up 34 percent since that time, with 70 percent of total exports being manufactured goods. “Made in America” still has a huge cache around the world. “Made in Michigan” can and should have significance overseas as well. Now is the time for Michigan’s alternative energy supply chain and manufacturers to look abroad for new markets, niche and otherwise. The demand for electricity is exploding in emerging markets of developing and less developed countries. The Kyoto Treaty and other international efforts are aimed at satisfying this demand with renewable resources rather than fossil fuels. With its technology, engineering, and lean manufacturing prowess, Michigan could be on the leading edge of this effort. The export market is wide open. Let’s go to work on exporting “Pure Michigan.

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Expanding Market for Technologies to Clean Wastewater from Hydraulic Fracturing

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Since 2005, U.S. production of natural gas has increased exponentially, from a negligible amount to almost 7.5 trillion cubic feet in 2011. The U.S. is now the largest producer of natural gas in the world.

The new-found supply of this energy source has also had a significant effect on public policy. Domestic energy production, and natural gas in particular, is caught in a battle between proponents of sustainable sources of energy such as wind and solar, the interests of traditional coal-fired plants, national security interests in reducing dependence on foreign energy sources, environmentalists and proponents of natural gas.

The epic increase in the supply of natural gas has come from the effectiveness of hydraulic fracturing. In the hydraulic fracturing process, water mixed with chemicals and sand is injected into a well at ultra-high pressure to shatter and hold open the rock below and release the gas. According to the U.S. Department of Energy, the hydraulic fracturing fluid is composed of approximately 95% water, 4.5% sand and .05% different chemicals. These chemicals can number up to about 65 and include benzyne, glycol-ethers, toluene, ethanol and nonphenols. All of these chemicals have been linked to human health disorders when exposure and concentrations are too high. Because the percentages are by weight, it is estimated that approximately 20 tons of chemicals are added to each million gallons of water. A typical hydraulic fracturing procedure involves 4-7 million gallons of water so about 80-140 tons of chemicals. Each well requires millions of gallons of water (which separately is leading to confrontations over water supply in drought-stricken states). Some of the water comes back up immediately, along with additional groundwater. The rest returns over months or years.

A major issue is how to deal with the wastewater. The amount of water is significant. In most cases, the contaminated water is pumped into disposal wells, but this is not without risk. The wells and pumps can leak, allowing disposal water to contaminate existing aquifers.  In Texas alone, the amount of wastewater increase is significant. According to The New York Times, the state has more than 8,000 active disposal wells. The amount of wastewater being pumped into those wells has increased to approximately 3.5 billion barrels in 2011 from just 46 million barrels in 2005. A recent study dealing with the Marcellus Shale formation, which stretches from New York to Virginia, indicates that wastewater disposal from hydraulic fracturing could soon overwhelm the general wastewater treatment infrastructure of the formation. So cleaning this wastewater is important and represents a significant economic opportunity.

Insurers who write coverage on these environmental risks acknowledge that premiums are favorably impacted by the presence of effective technologies to clean the wastewater.

Water technology is a rapidly growing industry. Global Water Intelligence estimates the global water industry is $483 billion/year and growing by several percentage points annually. Water technology hubs are emerging to encourage and facilitate economic development, notably in Milwaukee, Singapore, Ontario and Israel.

Technologies are already being developed to treat wastewater from hydraulic fracturing. A new desalinization process developed at MIT can scrub the contaminants from the wastewater, uses significantly less energy and is less complicated than other desalinization techniques. The technique is called a carrier gas process in which water is sprayed onto warm air. The water vaporizes, and the water vapor, which contains only pure water, is bubbled through cool water and the vapor then condenses. Researchers at the University of Minnesota have developed a process of creating centimeter-sized silicon beads that have chemical-degrading bacteria inside them. The beads are porous so the chemicals can enter but not porous enough for the bacteria to leave. These represent just two of the developing technologies to treat the wastewater. This alone will become a multi-billion dollar industry in the coming years.

Private equity and venture capitalists should take note. There is a distinct need for this technology and a rapidly increasing, lucrative market. The economic and societal benefits of cheap, plentiful natural gas cannot be denied. Hydraulic fracturing makes it happen. And hydraulic fracturing requires billions of gallons of water annually which need to be treated and/or disposed of.

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A Reminder About Pollution Legal Liability Coverage

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A recent decision from the federal district court in Pittsburgh highlights the importance of carrying environmental insurance, especially in connection with properties or facilities with an increased potential for environmental legacy liabilities. Many property owners believe that comprehensive general liability (CGL) policies adequately protect against environmental liabilities. However, standard CGL policies will typically only cover certain, very limited environmental liabilities and are by no means an effective tool for comprehensive environmental protection. Pollution legal liability (PLL) policies, designed to respond to contamination found on properties, are a far more useful and comprehensive mechanism to mitigate potential liability stemming from current or past ownership of environmentally sensitive properties.

Wiseman Oil v. TIG Insurance, 2013 U.S. Dist. LEXIS 14747 (W.D. Pa. Jan. 22, 2013), report and recommendation adopted, 2013 U.S. Dist. LEXIS 37501 (W.D. Pa. Mar. 19, 2013), involved a claim by Wiseman for coverage and for defense under Wiseman’s CGL policy for underlying claims against Wiseman under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA).

The CERCLA claims against Wiseman arose out of environmental contamination at property formerly owned by Wiseman. TIG asserted that it owed no such defense or coverage-related duties to Wiseman. Among other arguments, TIG asserted that the CGL policy contained an exclusion for bodily injury orproperty damage claims arising out of the release of hazardous materials “into or upon land.” However, the exclusion contained an exception to releases that were considered “sudden and accidental.” “Sudden and accidental” was not defined under the policy. TIG asserted that the CERCLA claims brought against Wiseman did not allege any sudden or accidental event and thus it had no duty to defend or otherwise provide coverage.

The case was assigned to Chief Magistrate Judge Lisa Pupo Lenihan for a report and recommendation. She clarified that TIG’s duty to defend did not hinge on whether the underlying complaint “expressly alleges specific factual predicates clearly within the applicable policy terms.” Rather, the duty to defend arose when a fair reading of the underlying complaint did not “expressly rule out the possibility of insurance coverage under the applicable policy terms.” Pupo Lenihan stated further that TIG could not reasonably conclude from the face of the underlying complaint that the allegations “precluded or negated any potential applicability” of the “sudden and accidental” qualifiers.

Based on the foregoing, Pupo Lenihan held that the language of the underlying complaint was a sufficient basis to deny TIG’s asserted grounds for summary judgment and to grant Wiseman’s motion for partial summary judgment on the question of TIG’s duty to defend.

Last month, U.S. District Judge Joy Flowers Conti of the Western District of Pennsylvania adopted Pupo Lenihan’s report and recommendation. (See 2013 U.S. Dist. LEXIS 37501 (W.D. Pa. Mar. 19, 2013).)

Although in this case Wiseman succeeded in thwarting its insurer’s summary judgment motion on the dutyto defend, in order for Wiseman ultimately to obtain coverage for its claim it will face a significant burden in demonstrating that the “sudden and accidental” exception to the policy exclusion applies. Given that the property was likely contaminated over a long period of time rather than in a single abrupt, catastrophic event, actually obtaining coverage under the policy will require a factually intensive showing that the gradual contamination was sufficiently like the abrupt event to qualify as “sudden and accidental.” In short, the case highlights the difficulty of obtaining coverage for environmental liabilities under a CGL policy.

That controversy could have been avoided if the plaintiffs had considered other insurance products that are better suited to cover this type of pollution-related risk. This is especially true of properties on which manufacturing or other environmentally sensitive operations may have occurred.

Generally speaking, PLL insurance policies can help landowners mitigate known and unknown risks associated with the acquisition and divesture of real property, and offer more robust protections for environmental risks than the CGL policy that the plaintiffs sought to rely on in the Wiseman case. In situations comparable to the facts at issue in Wiseman, a PLL policy would have been a more appropriate coverage and likely would have negated the need to bring a lawsuit to enforce the policy.

PLL coverage is the most common type of insurance to address potential environmental liabilities associated with real property.

It is generally used to address cleanup costs for environmental contamination, third-party claims for bodily injury or property damage arising from environmental contamination (both pre-existing or first occurring during the policy term), and business interruption losses resulting from a covered environmental condition or claim.

Among other things, PLL policies can also provide for protection against natural resource damages, risk stemming from non-owned disposal sites, and legal defense costs associated with all of the foregoing. PLL policies cover unknown pre-existing contamination discovered after the policy inception, as well as new conditions that occur after the inception date.

Known conditions are included under most PLL policies unless they are specifically scheduled and excluded from coverage under the policy. Capital improvement exclusions are quite common and would exclude costs of remediating known conditions, such as urban fill material, in connection with redevelopment of a property.

However, costs arising in connection with government claims stemming from known conditions can still be covered under a typical PLL policy. CGL policies will typically exclude coverage for underground storage tanks, fuel or chemical storage, waste storage and business interruption, which can be included under a PLL policy. It is also important to note that off-site disposal sites or landfills (often called “non-owned disposal sites” in PLL policies) can be scheduled onto policies. If liability arises at the disposal facility and liability attaches to your client as a generator, the PLL policy would kick in.

PLL policies also can cover re-opener type situations. In many states, parties that have received no-furtheraction determinations after cleaning up a contaminated property may be audited, and the cleanup decision re-opened to require further investigation or remediation. This is likely to occur in situations where the remediation standards governing a particular contaminant are revised, or where new data become available at a later date suggesting that remediation was not properly completed. With a PLL policy in place, costs associated with a re-opener become less of an uncertainty. PLL policies also entitle the policyholder to legal defense of any of the above situations.

PLL policies are claims-made-and-reported policies, meaning that claims must be made during the term of the policy. So, for example, Wiseman would have had to have an existing PLL policy covering the property to avail itself of that policy’s protections when the underlying CERCLA claim arose. It would not have been enough to have had the policy during ownership of the property.

Underwriting on PLL policies is typically conducted using readily available environmental documents, including Phase I and Phase II environmental site assessments, as well as other environmental reports, and agreement documents.

Wiseman offers an important lesson, especially to those that own or operate properties that have current or former facilities with environmentally sensitive operations: CGL policies are not an effective tool to manage environmental liability risks. Although not perfect, PLL policies are a more appropriate type of coverage to mitigate unknown risks associated with present and legacy property ownership. PLL policies can offer particular value to address the residual risk after a cleanup.

Kyle R. Johnson also contributed to this article.

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Two Polar Bear Decisions in Two Weeks: Their significance for Climate Change, Endangered Species and Project Development

The National Law Review recently published an article by Lowell M. Rothschild with Bracewell & Giuliani LLP titled, Two Polar Bear Decisions in Two Weeks: Their significance for Climate Change, Endangered Species and Project Development:

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The end of February saw a flurry of news regarding the status of the Polar Bear under the Endangered Species Act.  On February 20, the US Fish and Wildlife Service reissued its so-called “4(d)” rule regarding the Bear, outlining the rules “necessary and advisable” to protect it.  Nine days later, the U.S. Court of Appeals for the DC Circuit upheld FWS’s listing of the Polar Bear as a “threatened” species under the ESA.   Each development is significant in its own right; together, they offer solid guidance as to where FWS is heading on using the ESA to address climate change and how climate change is affecting the listing of potentially endangered species.

Endangered v. Threatened

The latter question was at the heart of the litigation decided by the DC Circuit.  There, the court faced the question of whether FWS correctly identified the Polar Bear as “Threatened”, rather than “Endangered”.  Under the ESA, the difference between the two is essentially whether the species is currently in danger of extinction (Endangered) or whether it is likely to become endangered in the foreseeable future (Threatened).

The Polar Bear’s Listing

The Polar Bear is heavily dependent on sea ice, and climate change is decreasing the amount of arctic sea ice.  FWS’s decision that the Bear was Threatened, rather than Endangered, was based, essentially, on the Service’s view of how quickly climate change was causing arctic sea ice to melt.  If it is happening “quickly,” FWS would list the Bear as Endangered.  If it is happening very slowly, FWS wouldn’t list the Bear at all.  FWS took the middle path, deciding that climate change is happening fast enough that those species face the threat of extinction in the foreseeable future.  Given the limitations of climate science, FWS chose 45 years as the “foreseeable” future and the Court upheld FWS’s use of this timeframe.

What the Listing Shows about FWS’s View of Climate Change’s Impact on Species

The Court upheld FWS’s listing decision, doing so in the face of challenges on both sides of the decision –  some argued that the Bear shouldn’t be listed at all and others argued that it faces an imminent risk of extinction and should be considered Endangered, not just Threatened.   The takeaways from FWS’s listing decision and the court’s refusal to strike it down are that, at least for the ESA:

  • climate change is occurring
  • it will have significant adverse impacts to species in the foreseeable future
  • those impacts are still reversible

The 4(d) Decision

So, since FWS has determined that climate change is adversely affecting species, will it use the ESA to regulate climate change?  That question was at the heart of the other major development: FWS’s issuance of the “4(d)” rule for the Polar Bear.  At a very high level, a 4(d) rule outlines the steps FWS believes are necessary and advisable to protect a Threatened species.  These steps can include either restrictions on public action, such as limitations on development in the species’ habitat, or the allowance of otherwise prohibited activity, such as permitting certain specified, limited adverse impacts to the species.

What the Polar bear 4(d) Decision Means for Using the ESA to Regulate Climate Change

For the Polar Bear’s 4(d) rule, the main public policy question was how to address activities outside of the Bear’s range that increased the potential for climate change.  Since we know the Polar Bear needs sea ice to survive and that climate change is reducing arctic sea ice, would FWS’s 4(d) rule attempt to protect the Bear from further reductions in sea ice by addressing activities that affect the climate change? Boiled down to its core, would the 4(d) rule require greenhouse gas-emitting projects far from the Polar Bear’s range to obtain an ESA permit for those emissions?  FWS’s rule says no.

The Takeaways

The rule is consistent with FWS’s prior 4(d) rule for the Polar Bear, issued in 2008 and struck down by US District Court for the District of Columbia in 2011.  The rule is also consistent with Bush Administration guidance addressing how FWS should examine the ESA impacts of GHG emissions.  It is therefore a reliable and useful marker as to FWS’s view of the ESA.  The new 4(d) rule is more likely to be upheld than the prior one – the prior one was struck down for largely procedural reasons and for a few inadequate findings which FWS appears to have since corrected.

The takeaway here is that FWS has taken a consistent position over time on the use of the Act to regulate GHGs. The Service has used and will continue to use the Act to protect species affected by climate change, but only from actions taken against them directly or in their range – it will not use the ESA to regulate GHGs on a national or global level.

© 2013 Bracewell & Giuliani LLP

Cutting Edge Issues in Asbestos Litigation Conference – March 18-19, 2013

The National Law Review is pleased to bring you information about the upcoming Perrin Cutting Edge Issues in Asbestos Litigation Conference:

Asbestos March 18 2013

Monday, March 18th – Tuesday, March 19th, 2013
Beverly Wilshire, A Four Seasons Hotel
Beverly Hills, CA

Cutting Edge Issues in Asbestos Litigation Conference – March 18-19, 2013

The National Law Review is pleased to bring you information about the upcoming Perrin Cutting Edge Issues in Asbestos Litigation Conference:

Asbestos March 18 2013

Monday, March 18th – Tuesday, March 19th, 2013
Beverly Wilshire, A Four Seasons Hotel
Beverly Hills, CA