Federal Court Holds Corps Responsible for Hurricane Flood Damage

The U.S. Court of federal claims held yesterday that the U.S. Army Corps of Engineers is liable for the way it handled water during Hurricane Harvey in 2017. The case focused on two dams built in the suburbs of Houston in the 1940s that caused adjacent properties to flood during the hurricane. Noting that the dams had been designed for much larger storms than those used to calculate the area that was purchased to accommodate flood waters at the time the dams were constructed, the court found that the Corps knew that extreme storms could overflow government-owned lands surrounding the reservoir and flood adjacent properties. Consequently, the Corps was aware of the potential damage its decision to build the dams without purchasing sufficient land in the vicinity could do and liable for a taking of private property without just compensation under the Fifth Amendment to the U.S. Constitution. Warnings in public forums and documents of the potential for flooding were not sufficient to relieve the Corps of liability.

Special Master Recommends Georgia Prevail in Water War with Florida

A special master appointed by the U.S. Supreme Court has recommended that the court rule in Georgia's favor in a water rights dispute with Florida. It's just the latest in the long-running dispute between Georgia, Florida and Alabama over water in two water basins that cross state lines. Florida claims that Georgia’s excessive water withdrawals have harmed the state’s oyster industry by increasing salinity in the Apalachicola estuary. The special master rejected Florida’s arguments, finding that Georgia’s water use is reasonable and that the requested relief might not outweigh the potential harms. The case will ultimately be decided by the Supreme Court.

Lawyers Addressing Climate Change

Great article in the American Bar Association magazine (ABA Journal) on what lawyers are doing on the issue of climate change. It gives a really good overview of how lawyers are attacking climate change and the different roles they can play in the debate. Read the article here.            

Criminal Sentencing in Clean Air Act Case

The former project manager at an oil processing plant that exploded in Montana in 2012 injuring three employees was sentenced today to two years of probation and fined $5,000. Mark Hurst pleaded guilty on February 27th to negligent endangerment under the federal Clean Air Act.

On September 27th, a jury convicted co-defendant Peter Margiotta of all three counts against him related to the plant explosion. The jury found Margiotta guilty of conspiracy and two violations of the Clean Air Act (general duty and knowing endangerment). Margiotta was president and director of Custom Carbon Processing, Inc., a Wyoming company that constructed the Michels Disposal Well and Oil Processing facility in Wibaux in 2012. Hurst testified against Margiotta at trial.

Although Hurst had notified his superiors of serious problems at the plant, he continued to operate the plant and kept it open. Simply notifying management of problems is not sufficient to avoid criminal liability under federal environmental laws.

Legislation Seeks to Designate PFAS as Hazardous Substances

On January 14, 2019, Rep. Debbie Dingell (D-Michigan) introduced H.R. 535, known as the "PFAS Action Act of 2019." If passed, the act would require the Environmental Protection Agency to designate per- and polyfluoroalkyl substances (PFAS, including PFOA, PFOS and GenX) as "hazardous substances" under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA, or the Superfund law).

Manufactured and used around the world since the 1940s, PFAS can be found nearly everywhere. These substances don't break down and accumulate over time -- both in the environment and in our bodies. According to the EPA, there is evidence indicating that exposure to PFAS can lead to adverse human health effects.

PFAS can be found in

• food packaged in PFAS-containing materials, processed with equipment that used PFAS, or grown in PFAS-contaminated soil or water;
• commercial household products, including stain- and water-repellent fabrics and treatments (such as Scotchgard), nonstick products and cookware (such as Teflon), polishes, waxes, paints, cleaning products, and fire-fighting foams;
• workplaces that use PFAS (such as chrome plating, electronics manufacturing, or oil recovery);
• drinking water near facilities that manufacture or use PFAS; and
• living organisms, including fish, animals, and humans, where PFAS have the ability to build up and persist over time.

While certain PFAS chemicals are no longer manufactured in the United States as a result of phase-outs, they are still produced internationally and can be imported into the country in consumer goods such as carpet, leather and apparel, textiles, paper and packaging, coatings, rubber and plastics. Some U.S. manufacturers stopped producing PFOA and PFOS -- which received the bulk of attention from scientists -- only to replace them with other PFAS. There are hundreds of other PFAS compounds which are still in production, many of which are direct replacements for PFOA and PFOS and have similar chemical makeups. All PFAS would be designated as hazardous substances under the proposed legislation.

According to a 2016 Harvard University study, Alabama has the fourth highest concentration of PFAS in its water supply behind California, New Jersey and North Carolina. Drinking water contamination in North Alabama has been linked to the 3M plan on the Tennessee River. The BASF chemical plant in McIntosh was also identified as a point of origin for PFAS contamination.

A draft toxicological profile for PFAS issued in June 2018 by a branch of the Centers for Disease Control was put on hold by the Trump Administration and EPA. The draft report suggested risk levels of 7 parts per trillion for PFOS and 11 parts per trillion for PFOA, as opposed to the 70 parts per trillion contained in a 2016 EPA health advisory. There are currently no legal limits on the amount of PFAS that can be discharged into the environment or contained in drinking water. According to a story in POLITICO on January 28, current EPA Acting Administrator Andrew Wheeler just recently signed off on a still-unpublished decision not to regulate PFOS and PFOA under the Safe Drinking Water Act. The issue promises to be a hot topic at Wheeler's upcoming confirmation hearing.

The bill was referred to the Committee on Energy and Commerce and the Committee on Transportation and Infrastructure.

EPA announces grants to universities, NGOs to help clean up Gulf ecosystem

In December, EPA announced plans to award nearly $6 million to 15 universities and charitable organizations for projects in the Gulf of Mexico focusing on improving the health, productivity and restoration of the Gulf watershed and the communities that rely on it. The EPA says it plans to measure program success by acres restored, water clarity, recreational use improvement, and species rehabilitation. EPA and the funded organizations will work together with federal and state agencies to ensure each funding project successfully restores critical Gulf ecosystems.