Constant Vigilance: Why Environmental Criminal Enforcement Still Matters

Posted in Compliance, Court Cases, Environment, Environmental Justice, EPA, Litigation, Uncategorized

Jillian Kirn authored an article titled “Constant Vigilance: Why Environmental Criminal Enforcement Still Matters” in The Legal Intelligencer.

According to Syracuse University’s Transactional Records Access Clearing House (TRAC), federal prosecutions for environmental crimes are down 40 percent from 2013 levels. Still, despite these recent declines, environmental criminal enforcement remains a potent regulatory tool.

To read the full article, click here.

 

Florida Appellate Court Reverses Class Certification in Commercial Fishing Action Arising From a 65-Million-Gallon Process Water Release Into Tampa Bay

Posted in class action, Court Cases, Environment, Florida, Hazardous Waste, Pollution, Water

In the summer of 2004, during Hurricane Frances, an industrial facility released approximately 65 million gallons of process water into Tampa Bay. A group of commercial fishermen promptly filed a putative class action. The class representatives alleged that the release damaged the natural habitat and adversely affected commercial fishing in and around Tampa Bay. At the certification hearing class representatives testified to what they alleged was their firsthand observation of harm to the bay and their experience of loss in commercial fishing landings and revenue. They argued that the “overwhelming common legal and factual aspects between the claims of the named [p]laintiffs and putative class members dwarf any variation in the claims and predominate over any individualized issues.” The defendant presented the testimony of experts in the fields of ichthyology, benthic ecology, marine biology, physical oceanography, estuarine science, and commercial fishing economics to demonstrate not only the absence of areawide impact, but that the class representatives failed to provide any methodology to demonstrate classwide impact and no class representative could prove the cases of the absent class members by proving their own individual cases.

The trial court certified the class by bifurcating liability and damages. It stated in its certification order:

The liability issues are common to all plaintiffs, since they are determined only by the actions of the defendant and of nature. These common questions predominate up to and including the determination of the severity of the spill’s potentially toxic effects in each geographic area. The plaintiff’s yet-to-be-revealed evidence of the effect of the spill and the defendant’s “no causation” defense both pertain to particular geographic areas, not particular people, and are thus common questions to be resolved at the liability stage.

The defendant appealed the trial court’s class certification to the Second District Court of Appeal, which rendered a decision reversing the trial court’s certification, holding that the trial court “abused its discretion because there was no competent, substantial evidence supporting its ‘proof-based inquiry’ into and ultimate determination of rule 1.220(b)(3)’s predominance requirement.” Mosaic Fertilizer, LLC v. Curd, et al., Case No. 2D17-2301 (Fla. 2d DCA Nov. 9, 2018). In its decision, the appellate court made the following important points:

  1. The class representatives must provide a reasonable methodology for proving classwide impact. The appellate court stated that “[a] proponent of certification must demonstrate a ‘reasonable methodology for generalized proof of class-wide impact’ whereby ‘proving his or her own individual case, [the putative class representative] necessarily proves the cases of the other class members.’” And that in this case, “[t]he fisherman [] had the burden of proving—beyond mere ‘supposition’—some methodology for generalized proof by which the class representative would necessarily prove the cases of all other commercial fishing license holders who claim to have been damaged by the spill.”
  2. The class representatives’ evidence did not satisfy that requirement. The appellate court observed that “[t]aken as a whole, it is not possible to view [the class representatives’] testimony as plausibly putting forth a reasonable methodology for proving classwide claims.” Consequently, they “failed to carry their burden of positing any reasonable methodology for proving classwide claims.”
  3. Florida’s Engle case is unique and does not necessarily authorize bifurcation as a means of satisfying the predominance requirement. The appellate court observed that bifurcating liability and damages does not necessarily satisfy “a means of meeting” predominance, and Engle v. Liggett Group, Inc., 945 So.2d 1246 (Fla. 2006) is an idiosyncratic case that is “unique and unlikely to be repeated.”
  4. The trial court left for later what it was required to do at the class certification hearing. Finally, the appellate court noted that “[w]ithout making some antecedent showing of the methodology by which the fisherman intended to prove classwide claims, the fisherman failed to meet the burden imposed by rule 1.220(b)(3).”

Mosaic Fertilizer, LLC v. Curd, et al. provides useful guidance in the field of environmental class actions.

Greenberg Traurig served as counsel to Appellant, Mosaic Fertilizer, LLC, in this case.

Recent Opinions Hold Differing Views on Point Source Discharges Into Waters

Posted in Clean Water Act, Court Cases, Environment, Pollution, Uncategorized, Water, Water quality

Kathleen Kline authored an article in The Legal Intelligencer titled “Recent Opinions Hold Differing Views on Point Source Discharges Into Waters.”

The article explores two recent opinions from the U.S. Court of Appeals for the Sixth Circuit regarding the growing cacophony over Clean Water Act jurisdiction, both holding that the act does not regulate pollution that reaches surface water via groundwater.

To read the full article, click here.

OSHA’s Regional Emphasis Program on Reducing Exposure to Ammonium

Posted in GT Alert, Uncategorized

On Oct. 1, 2018, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) launched a new Regional Emphasis Program (REP) to address hazards from exposure to fertilizer-grade ammonium nitrate (FGAN) and agricultural anhydrous ammonia. The REP will be effective in the states of Arkansas, Kansas, Louisiana, Missouri, Nebraska, Oklahoma, and Texas. It is aimed at employers in the fertilizer storage, mixing/blending, and distribution industries whose workers can face hazards leading to serious illness, injury, and death from fire, explosions, and exposure to toxic gases and chemicals.

The REP was a result of a disaster at a facility several years ago in West, Texas, where at least forty tons of FGAN exploded and killed fifteen people, injured hundreds of others, destroyed the facility, and damaged other surrounding buildings.

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It’s the Law: Don’t Sell Your Homebrew!

Posted in brewing, Environment, Federal Regulation, Water

Homebrewing and drinking craft beer are both widely popular. Currently, there are more than 6,000 craft breweries in the U.S., and over 2,000 homebrew clubs. As brewing for fun and profit has become more widespread, the applicable legal framework has also developed – and compliance is just as important for hobbyists as for professionals.

At the outset, it’s important to note that homebrewing and commercial brewing are subject to very different sets of laws. The most basic distinction is that homebrew can’t legally be sold, a golden rule (and actual rule) those of us in the homebrewing community can’t be reminded of enough. Therefore, homebrewers are unaffected by many of the regulations for-profit brewers must comply with – but are limited in what they can do with the final product (i.e. you can’t sell it).

Brewing at any scale requires a lot of water. On average, seven gallons of water are needed to make one gallon of beer – and most of that water ends up as waste. Commercial breweries must obtain Industrial User permits, allowing them to discharge wastewater to municipal treatment plants, if they discharge an average of 25,000 gallons per day or more of water. Each permit will describe and limit what compounds the discharged water may contain, and heavy fines may be levied if the permit’s terms are violated. In 2016, Pennsylvania brewery Yuengling learned firsthand what the cost of noncompliance can be – the brewery entered a consent decree with the United States to resolve a dispute over alleged discharge permit violations, agreeing to pay nearly $10 million in combined facility improvements and penalties – expenditures of the type we avoid by not selling homebrew. Yuengling’s discharges primarily contained sugar and yeast – not toxic or hazardous compounds – and exceeded permit limits for phosphorus and zinc, pH, and biological oxygen demand.

Fortunately for homebrewers, smaller production volumes obviate the need for discharge permits and much of the concern over wastewater disposal. In Pennsylvania, homebrew production is limited to 300 gallons annually per household – an amount far lower than would trigger discharge permit requirements. So long as you adhere to that limit, you should avoid regulatory scrutiny. Don’t forget – not selling your homebrew helps you avoid regulatory scrutiny as well. While penalties for brewing water disposal are generally not applicable to homebrewers, best practices in water management should be followed. Water used for cleaning brewing equipment or chilling wort can be dumped down the drain or used to water a yard or garden. However, brewing effluent, like other waste, shouldn’t be dumped into storm drains or bodies of water. Particularly in drought-prone areas, water conservation should be a focus. Water that’s piped through a counterflow chiller, for example, generally remains clean and can be used to wash equipment after brewing, or for other purposes. A batch of sanitizing solution – which is mostly water – can be used to clean multiple items before losing effectiveness, and most commercial sanitizers used by homebrewers are biodegradable and non-toxic.

The other main biproduct of brewing is spent grain – malted barley and other grains from which most of the fermentable sugar has been extracted. Despite its name, spent grain still contains nutrition, and lends itself to a variety of uses. Breweries commonly donate or sell spent grain to be used as animal feed, eliminating the need for costly disposal of the would-be waste. This practice is allowed by the FDA, so long as the brewers comply with human food safety regulations, ensure spent grains aren’t commingled with other waste or contaminants, and do not transform the grains after brewing by cooking or otherwise processing them. The agency considered more stringent handling and packaging rules for breweries offering spent grains as animal feed in late 2013, but withdrew the proposal following widespread industry pushback against what were expected to be costly and duplicative requirements.

Homebrewing isn’t subject to these regulations under which the FDA allows spent grains to be sold as animal feed. Therefore, just as you should never sell your homebrew, entrepreneurial homebrewers should not sell their brewing biproducts either – at least, not without researching all requirements governing the intended use of the grains or other waste. Homebrewers can, however, use their spent grains for personal consumption or composting. Because spent grain output from a home operation is much smaller than that of a commercial brewery, local waste management should easily dispose of whatever’s left over once you’ve had your fill of spent grain bread (or granola, or pizza dough, or pretzels, or dog treats…) and your compost bin and your neighbors’ are overflowing.

If you’ve read this far, you’ve probably gathered that you’re not allowed to sell your homebrew. And I can’t accept homebrew in exchange for legal services. I know, it’s a bummer. But look on the bright side: as homebrewers, we deal with far fewer regulatory restrictions on our brewing and waste disposal processes. And we can be innovative and experimental, free to break the law of the Reinheitsgebot.

Oh, one last thing: don’t sell your homebrew!

Kathleen Kline is a litigator and environmental lawyer who handles a variety of matters, including disputes over water pollution as well as professional liability. Kathleen also serves as Legal Advisor to the Philadelphia Homebrew Club, in which capacity she constantly reminds Club members that it’s against the law to sell homebrew.

Expanding Incentives for Brownfield Redevelopment: What Has Changed?

Posted in Articles, Brownfields

Giuliano Apadula co-authored an article in the The Legal Intelligencer titled “Expanding Incentives for Brownfield Redevelopment: What Has Changed?” The article explores the Brownfields Utilization, Investment and Local Development Act.

To read the full article, click here.

Digital Platform – Sustainable Forest Development Law in Mexico

Posted in Agriculture, Environment, GT Alert, International, Mexico, Technology

On Sept. 6, 2018, the Secretariat of Environment and Natural Resources (SEMARNAT), along with the Secretariat of Agriculture, Livestock, Rural Development, Fishery and Food (SAGARPA), published a new agreement establishing the digital information platform mandated in Article 24, Paragraph 3 of the Sustainable Forest Development Law (the Agreement). The agreement sets out the guidelines that SEMARNAT and SAGARPA will use to identify forest territories and agricultural lands, and includes details about the digital platform that will be used to determine which forested land is eligible to receive government support and economic stimulus to help develop agricultural activities.

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Petroleum Price Visibility and Storage Tank Identification Guidelines for Gas Stations in Mexico

Posted in Energy, GT Alert, International, Mexico

On Sept. 7, 2018, the Energy Regulatory Commission (ERC) published guidelines for petroleum price visibility and storage tank identification in service stations selling gasoline and diesel fuel to the public in the Official Gazette of the Federation (the Guidelines). The Guidelines repeal agreement number A/047/2017.

The Guidelines went into effect Sept. 10, 2018, but licensed sellers of gasoline and diesel fuel have 90 days from Sept. 11 to comply.

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Another Major Step Towards a New Environment and Planning Act in the Netherlands

Posted in Hazardous Waste, International, Netherlands, Real estate

The Dutch government is working on a major overhaul of the statutory environmental framework in the Netherlands. In this context, four key environmental decrees (AMvBs) (the Decrees) were adopted and published in the Dutch Government Gazette on Aug. 31, 2018.

The publication of the Decrees is part of a major and fundamental revision of practically all Dutch environmental legislation. Dozens of acts and decrees and hundreds of rules will be bundled into one Environment and Planning Act (Omgevingswet) (the Act), including the Decrees. The Act itself was published in the Government Gazette on April 26, 2016.

This legislative program includes significant changes. Statutory obligations to attain a permit will, for example, be reduced or replaced with more general environmental rules. As a result, the industry expects a shift from permitting to supervision and enforcement. In addition, facilities with large amounts of hazardous substances will be exposed to administrative fines if they violate hazardous substances regulations (such a measure currently is not available for administrative authorities in the enforcement of hazardous substances).

Further, the municipal zoning plan (currently a key administrative instrument used to assign certain uses to plots of land) will be replaced with a new instrument, the environment plan (omgevingsplan), which should include comprehensive environmental rules (and not just the designated use of a plot). Based on the Act, local authorities may also choose to abolish the (current) requirement to attain a building permit, if they see fit. These amendments may have a major impact on development projects in the Netherlands.

The Act and the Decrees are scheduled to enter into force on Jan. 1, 2021. This allows for a period of transition during which governmental authorities and the industry can take the necessary preparatory actions.

Appellate Court Opens Door to Jury Trials in Proposition 65 Cases

Posted in Class action, Litigation, Proposition 65

The California Court of Appeal, First Appellate District (First District) recently reversed course on an important issue in the Proposition 65 world by indicating that a jury trial may be available to defendants in certain circumstances. The decision, Nationwide Biweekly Administration, Inc., et al., v. The Superior Court of Alameda County, Opinion, A150264, (June 13, 2018), rebuked both the legal reasoning and conclusion of the First District’s precedent on the issue, DiPirro v. Bondo Corp., 153 Cal.App.4th 150 (2007), which held that Proposition 65 defendants did not have a right to a jury trial.

In DiPirro, the court reasoned that jury trials are not available in Proposition 65 cases because the essential character and purpose of the law is to provide equitable relief, not to impose civil penalties. Id. at 180-81. DiPirro was based on a widely recognized principle in American jurisprudence under the Seventh Amendment to the U.S. Constitution – that litigants in traditional legal actions (i.e., monetary damage cases) are guaranteed the right to a jury trial, whereas litigants in equitable actions do not have such a right.

The First District’s recent decision in Nationwide Biweekly Administration expressly calls into question the legal reasoning and conclusion of DiPirro. The First District states that the DiPirro court misconstrued the rule, and that “a right to jury trial does exist as to liability in a government enforcement action seeking statutory penalties” but does not exist as to the amount of those penalties. Of course, Proposition 65 is not strictly an equitable relief statutory scheme – it includes a significant penalty component. On this basis, the First District stated that “we cannot endorse DiPirro’s analysis” given its unsupported conclusion that a right to jury trial does not exist when determining liability for penalties under Proposition 65.

Nationwide Biweekly Administration looks to be a positive development for defendants in Proposition 65 cases, but it does not expressly overturn DiPirro nor undo other fundamental problems with the law, including the fact that the burden of proof is often placed on the defendant. While the First District’s decision is a step in the right direction, it likely will not alter the ultimate conclusion for most Proposition 65 defendants – that settlement is a more cost-effective approach than engaging in lengthy litigation.

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