Gay Sigel

OSHA’S New Anti-Retaliation Rule: Effect on Safety Incentive Programs

By Gabrielle Sigel and Andi Kenney

On May 12, 2016, the U.S. Occupational Safety and Health Administration ("OSHA") issued a final rule addressing employers' workplace injury and illness reporting and recording obligations. 81 Fed. Reg. 29624-94. One portion of the new rule addresses retaliation against employees who report a work-related injury or illness (collectively, "injury") to an employer. Specifically, new § 1904.35(b)(1)(iv) provides: "You must not discharge or in any manner discriminate against any employee for reporting a work-related injury or illness." 29 CFR § 1904.35(b)(1)(iv). OSHA also added another new rule:  An employer “must establish a reasonable procedure for employees to report work-related injuries and illnesses promptly and accurately. A procedure is not reasonable if it would deter or discourage a reasonable employee from accurately reporting a workplace injury or illness.” 29 CFR § 1904.35(b)(1)(i).

The new rule, particularly § (b)(1)(iv), was challenged in federal court, with plaintiffs seeking a nationwide preliminary injunction prohibiting the rule's enforcement. TEXO ABC/AGC, Inc. v. Perez, No. 3:16-CV-1998 (N.D. Tex. July 8, 2016). On November 28, 2016, the court denied plaintiffs' request for an immediate injunction, but said that its decision on the preliminary injunction does not reflect its decision on the merits of plaintiffs' legal challenges to the rule. Without the preliminary injunction, OSHA may begin enforcing the new rule as of December 1, 2016.

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U.S. Supreme Court Invalidates EPA’s Regulation of Mercury from Power Plants

Sigel_Gabrielle_COLORBy Gabrielle Sigel

 

On June 29, 2015, the U.S. Supreme Court reversed the U.S. Court of Appeals for the D.C. Circuit and invalidated U.S. EPA's 2012 regulation of mercury and other hazardous air pollutant ("HAP") emissions from coal and oil-fired power plants.  Michigan v. Environmental Protection Agency, No. 14-46.

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Earth Day 2015: Annual U.S. Greenhouse Gas Emissions Inventory Shows Increase Since Prior Year and Since 1990

Sigel_Gabrielle_COLOR

By Gabrielle Sigel

 

As it has since 1994, on April 15 of this year, U.S. EPA published its annual Inventory of U.S. Greenhouse Gas Emissions and Sinks. The Inventory tracks greenhouse gas ("GHG") emissions from man-made sources, by year, starting in 1990. The Inventory began as part of the U.S.'s commitment to the United Nations Framework Convention on Climate Change ("UNFCCC") and uses the same methodologies as other UNFCCC members for developing and reporting data. Details on the 20th Annual Inventory can be found at http://www.epa.gov/ climatechange/ghgemissions/usinventoryreport.html.

The 2015 Inventory contains data from 2013 and in comparison to prior years. In 2013, U.S. GHG emissions totaled 6,673 million metric tons of CO2 equivalents ("MMTCO2e"). Those emissions are a 2% increase over 2012 emissions, although they remain lower than the peak amount (7,399.78 MMTCO2e), inventoried in 2007. The leading GHG emitted remains CO2, with its principal sources being electricity generation and transportation, followed by all other industrial sources.

U.S. EPA attributes the 2013 increase in GHG emissions largely to an increase in the use of coal to generate electricity. However, U.S. EPA also found that increased emissions occurred in virtually all sectors due to a cold winter leading to increased demand for heating, an increase in vehicle miles traveled, and an overall increase in vehicle fuel use. Overall, since 1990, GHG emissions have increased by 5.9%. Specifically, since 1990, emissions from electrical power plants have increased 11.4% and transportation-related emissions have increased by 16.4%.

The Inventory, which is submitted to the UN for further reporting and analyses with other countries' data, is different than the annual reports prepared by U.S. EPA pursuant to the GHG Reporting Program. The GHG Reporting Program was established by U.S. EPA rule on October 30, 2009. The Reporting Program accumulates emission data from years beginning with 2010 emissions and relies on reporting from 8,000 individual large sources of emissions (typically over 25,000 MMTCO2e/year). The Inventory, which EPA calculates based on national energy, agricultural, and other statistics, is meant to account for 100% of U.S. man-made sources, not just the largest sources. GHG Reporting Program data for 2013 was reported on September 30, 2014 and can be found at http://www.epa.gov/ghgreporting/ghgdata/mediacenter.html.

Third U.S. National Climate Assessment Released

Sigel_Gabrielle_COLORBy:  Gabrielle Sigel

 

On May 6, 2014, the U.S. Global Change Research Program released the Third U.S. National Climate Assessment, titled "Climate Change Impacts in the United States" ("the Assessment"). The Assessment was three years in the making and was based on the work of more than 300 experts from academia, government, business, and NGOs.

The 800-plus page Assessment contains twelve overall findings, which are incorporated into six chapters on various environmental or societal sectors, such as urban systems and Indigenous Peoples. The Assessment also evaluates climate change impacts by region of the country, including a discussion of effects on the coasts of ocean and internal waterways. The twelve key findings are:

  1. Global climate is changing and this is apparent across a wide range of observations.
  2. Some extreme weather and climate events have increased in recent decades, and new and stronger evidence confirms that some of these increases are related to human activities.
  3. Human-induced climate change is projected to continue, and it will accelerate significantly if emissions of heat-trapping gases continue to increase.
  4. Impacts related to climate change are already evident in many sectors and are expected to become increasingly disruptive across the nation throughout this century and beyond.
  5. Climate change threatens human health and well-being in many ways.
  6. Infrastructure is being damaged by sea level rise, heavy downpours, and extreme heat; damages are projected to increase with continued climate change.
  7. Water quality and water supply reliability are jeopardized by climate change in a variety of ways that affect ecosystems and livelihoods.
  8. Climate disruptions to agriculture have been increasing and are projected to become more severe over this century.
  9. Climate change poses particular threats to Indigenous Peoples' health, well-being, and ways of life.
  10. Ecosystems and the benefits they provide to society are being affected by climate change. The capacity of ecosystems to buffer the impacts of extreme events like fires, floods, and severe storms is being overwhelmed.
  11. Ocean waters are becoming warmer and more acidic, broadly affecting ocean circulation, chemistry, ecosystems, and marine life.
  12. Planning for adaptation…and mitigation…is becoming more widespread, but current implementation efforts are insufficient to avoid increasingly negative social, environmental, and economic consequences.

Key response steps recommended by the Assessment include adaptation, mitigation, additional research, and decision-making integrating adaptation and mitigation measures. This Assessment also recommends a "sustained assessment process," rather than developing reports periodically, as has happened in the past.

After detailing the significant negative impacts of climate change throughout the country, the Assessment's companion "Highlights" report concludes more optimistically that "the amount of future climate change and its consequences will still largely be determined by our choices, now and in the near future. There is still time to act to limit the amount of climate change and the extent of damaging impacts we will face."

The Assessment was prepared under the oversight of the National Climate Assessment and Development Advisory Committee, which was established at the end of 2010 by the U.S. Department of Commerce. A National Climate Assessment must be conducted every four years pursuant to the 1990 Global Change Research Act, which has resulted in prior assessment reports being released in 2000 and 2009.

EPA Proposes New and Differing Carbon Emission Limits for Future Natural Gas-Fired and Coal-Fired Power Plants

Sigel_Gabrielle_COLORBy Gabrielle Sigel

 

On September 20, 2013, U.S. EPA rescinded its first attempt and proposed new rules to establish New Source Performance Standards (NSPS), i.e., national emission limits, for carbon dioxide (CO2) emitted from new electric power plants. EPA's proposed approach is to set different limits, and different technology, depending upon whether the electric generating unit (EGU) is natural gas-fired or coal-fired plant. For coal-fired EGUs, EPA proposed a CO2 limit that requires the use of carbon capture and storage (CCS) technology for at least some CO2 emissions, and sets two different limits based on the averaging period used. Natural gas EGUs have two different limits based on their size, but CCS is not to be required for any of those EGUs. EPA's new proposed rule is a significant departure from its original proposed rule for the electric utility sector, so at the same time it proposed the new NSPS, it formally rescinded its original proposal.

As background, in April 2012, EPA proposed a single electricity output-based emission limit of 1,000 pounds (lb) of CO2 per megawatt-hour (MWh) of gross electrical output for all new fossil fuel-fired plants. This emission limit was reached by determining the CO2 emissions only from modern, newly constructed natural gas combined cycle facilities. However, no new coal-fired plant would be able to use feasible and proven technology and still meet the 1,000 lb. CO2/MWh limit. Thus, the 2012 proposed standard was based on an EPA calculation that no new coal-fired units would be built in the near future.

EPA received 2.5 million comments in response to its 2012 proposed rule, more comments than in response to any other regulation in its history. Many of those comments criticized EPA for its foundational assumption that no new coal plants would be built and accused EPA of plotting the end of coal as an energy source. In response to these comments, EPA rescinded its proposed rule. In doing so, EPA explicitly recognized that its prior modeling did not consider that (a) since April 2012, some coal-fired units had reached advanced stages of construction and development; and (b) several utilities may need to build additional coal-fired units either due to higher than usual electricity demand and/or higher than expected natural gas prices. Thus, EPA proposed to set the NSPS for coal-fired plants at a higher emission limit than for natural gas EGUs, but required coal-fired plants to use of CCS to control their emissions.

Under § 111(b) of the Clean Air Act, EPA is required to set NSPS to limit emissions of "air pollutants" from stationary sources. NSPS are established based on "BSER" – the best system of emission reduction for the particular emission source. EPA already has issued NSPS for other pollutants emitted by power plants, but not for CO2, which was recognized by the U.S. Supreme Court as an "air pollutant" in Massachusetts v. EPA, 549 U.S. 497 (2007).

The new proposed rule recognizes that BSER is different for natural gas-fired electricity generating units than it is for coal-fired units. Thus, EPA set different NSPS based on different BSER for different types of EGUs. Specifically, for natural gas EGUs, EPA proposes to limit emissions to:

  • 1,000 lb. CO2/MWh for units generating greater than 850 mm BTu/hr (large units)
  • 1,100 lb CO2/MWh for smaller units

All new natural gas-fired units would need to use the most current natural gas combined cycle (NGCC) technology in order to meet this limit, but EPA recognized that, even with this technology, smaller NGCC units are less efficient. EPA specifically rejected requiring CCS for any NGCC units because the technology is not used or proven effective to control emissions from those units.

For fossil fueled-fired utility boilers and integrated gasification combined cycle (IGCC) units, which primarily use coal or other solid high-carbon feedstock, EPA proposed two alternative limits:

  • 1,100 lb. CO2/MWh over a 12-operating month period; or
  • 1,000 lb - 1,050 lb. CO2/MWh over an 84-operating month period.

EPA provides the choice of a lower limit, but longer compliance period in order to encourage CCS technological advances and allow start-up time for that new technology. To meet either of these numerical limits, a new unit would have to use CCS to capture some of its emissions. EPA rejected requiring full CCS because of its cost, putting the price of electricity at almost three times the cost of natural gas-fired units. However, EPA estimated that partial CCS would allow prices to be within the range of other non-natural gas-fired electricity generated options, such as nuclear, biomass, and geothermal.

EPA estimates that a coal-fired unit meeting the 1,100 lb. CO2/MWh standard would emit 30-50% less CO2 than a coal-fired unit without CCS. Anticipating that its choice of CCS, even on a partial basis, will be criticized as impermissibly imposing an infeasible technology, EPA noted that two IGCC projects currently use partial CCS and two others are in advanced stages of development. EPA also stated that almost all coal-fired EGUs in planning stages intend to implement CCS on some level.

Unlike the 2012 proposed rule, EPA is planning to apply its new rule to all new power plants in the planning phase which have not yet begun construction, except for perhaps one facility that is in an advanced stage of planning, but which is not designed to meet the new emission standard. The new rule would not apply to existing EGUs or those undergoing modification or reconstruction. The new rule also would not apply to EGUs that sell less than one-third of their power to the grid; are liquid oil-fired stationary combustion turbine EGUs; or do not burn any fossil fuels, such as those burning only biomass.

EPA will be receiving public comments on this proposal for 60 days after its publication in the Federal Register, but stated its intent to issue a final rule "in a timely manner," as directed by the President's June 2013 Climate Action Plan. In the same announcement of its proposed rule for new power plants, EPA reiterated its intent to issue proposed and final rules for existing power plants by June 1, 2014 and June 1, 2015, respectively.

Energy and EPA Defend Administration’s Climate Change Approach in Congress

Sigel_Gabrielle_COLORBy Gabrielle Sigel

 

On September 18, 2013, the House Committee on Energy and Commerce's Subcommittee on Energy and Power held a hearing on "The Obama Administration's Climate Change Policies and Activities" in response to the President's Climate Action Plan released on June 25, 2013. The Subcommittee, chaired by Congressman Ed Whitfield (R-Ky), had invited thirteen federal agencies to attend the hearing. Energy Secretary Ernest Moniz and EPA Administrator Gina McCarthy appeared to testify on behalf of the Administration.

In the majority's memorandum announcing the Subcommittee's hearing, its purpose was described as part of the subcommittee's oversight of federal agencies' work on the issue of climate change. As background, the memorandum noted that the federal government had been spending billions on climate change related issues each year since 1993. The memorandum emphasized, however, the Obama Administration's increased focus on the issue.

In prepared remarks, EPA Administrator McCarthy stated that, "Responding to climate change is an urgent public health, safety, national security, and environmental imperative that presents an economic challenge and an economic opportunity." She described the President's plan as directing federal agencies to cut carbon pollution in America, prepare for climate change impacts, and lead international efforts, all within "existing executive authorities." Administrator McCarthy described EPA's role in all three activities, but primarily focused on EPA's role in addressing carbon pollution. She highlighted EPA's role in developing vehicle GHG emission standards and for controlling emissions from new and existing power plants.

In Secretary Moniz's prepared remarks, he began by emphasizing that the scientific basis for the "drivers of climate change" and the likely expected impacts. In describing the Department of Energy's role in the President's Climate Action Plan, he described the role of various methods of energy production in reducing CO2 emissions. He focused in particular on the need for energy efficiency and the development of technologies for a "low-carbon future." The principal action his agency has taken in the short term is to issue a draft solicitation for $8 billion in loan guarantees for advanced fossil energy technologies. He also stated that coal continued to play "a key role in our energy mix," and that his agency sought to invest in advancements in clean coal technologies. He concluded by describing the President's plan as "an all-of-the-above approach to ensure that thisenergy is used wisely and cleanly in a low carbon economy…."

The questioning of Secretary Moniz and Administrator McCarthy by Congressional members of the Subcommittee included the following topics:

  • The Administration's commitment to coal and nuclear power, both of which the Administration's representatives agreed played important roles in the country's energy future.
  • The effect of the upcoming proposed New Source Performance Standards for new power plants and the future rules for existing plants. Administrator McCarthy refused to discuss any details of the proposed rule to be released two days later. Chairman Whitfield later said that the Subcommittee would hold a hearing on the new proposed rule soon after it was released.
  • Whether there was scientific support for the anthropogenic source of climate change. Both Republicans and Democrats stated their con and pro positions and submitted competing studies into the record.
  • The President's emphasis on pursuing climate change strategies within his executive authority, which Republicans found offensive to their legislative powers.

The day before the hearings began, Senate Minority Leader Mitch McConnell (R-Ky) introduced legislation to prevent EPA from issuing rules regulating CO2 emissions from power plants unless the rules were "explicitly authorized by an Act of Congress." (S. 1514) Unlike Congress's relatively quiet response to the Administration's first-term regulations of CO2 under the Clean Air Act, Congress now promises to respond earlier in the regulatory process to President Obama's use of executive power to address climate change.

NOW AVAILABLE: Climate Change Law in Review, 2009-2012

Sigel_Gabrielle_COLORGabrielle Sigel, Co-Chair of Jenner & Block's Climate and Clean Technology Law Practice, has written a comprehensive review of climate change law during President Obama's first term: Climate Change Law in Review, 2009-2012: Obama's First Term Changes the Climate on Climate Change. The article explores the changes and challenges in climate change law that occurred over the last four years.  Ms. Sigel analyzes the actions taken by President Obama's EPA, and other federal agencies, ground-breaking legal decisions in the courts, and attempts by Congress to address these issues. Ms. Sigel also explores U.S. participation in climate action in the international sphere. The article begins:

"At the close of Barack Obama's first term as President, he was criticized by many for having done little to address climate change and by others for having done too much. Regardless of whether one thought it too much or too little, between 2009 and 2012, there was significant new government action attempting to address the effects of climate change. Notably, this climate action came primarily out of the Executive Branch, using statutes previously passed by the Legislative Branch, and challenged and defended – typically successfully – in the Judicial Branch."

The article can be obtained here, or by email request to Gabrielle Sigel, gsigel@jenner.com.

D.C. Circuit Court Denies Request For Rehearing of Decision Upholding EPA GHG Emission Regulations

Sigel_Gabrielle_COLORBy Gabrielle Sigel

 

On December 20, 2012, the U.S. Court of Appeals for the D.C. Circuit voted to deny rehearing of a June 26, 2012 panel decision of that court, which had upheld a series of U.S. Environmental Protection Agency ("EPA") Clean Air Act regulations for control of greenhouse gas ("GHG") emissions from mobile and stationary sources. Coalition for Responsible Regulation v. EPA, No. 09-1322, U.S. Ct. App. D.C. Cir., on petition for rehearing en banc (12/20/2012). In a 6-2 decision, with two judges writing dissents, the D.C. Circuit court denied petitioners' request for rehearing. The statements of three D.C. Circuit judges supporting the panel's original decision and of the two judges who disagreed and voted to grant the rehearing provide a preview of the parties' arguments in opposition to and in favor of an appeal being heard by the U.S. Supreme Court, particularly with respect to EPA's permitting program for stationary sources.

In June 2012, a panel of the D.C. Circuit court had approved EPA's Clean Air Act ("CAA") GHG regulations. Coalition for Responsible Regulation v. EPA, No. 09-1322, U.S. Ct. App. D.C. Cir. (6/26/12). The case was before the court after several States, led by Virginia and Texas, and industry groups, including the U.S. Chamber of Commerce, had filed petitions with the appellate court in response to EPA's series of GHG regulations. Those regulations included EPA's finding that GHG emissions constitute a danger to public health and environment, regulation of emissions from mobile sources, and requiring permits for GHG emissions from stationary sources, limited to the largest sources of GHGs. The D.C. Circuit court panel of three judges upheld all of EPA's regulations in a unanimous per curiam decision. (Id.) (A more detailed explanation of the panel's decision can be found at the Corporate Environmental Lawyer blog entry, "Federal Appellate Court Gives U.S. EPA Greenhouse Gas Regulatory Victory," June 27, 2012.)

In response to the loss before the panel, several of the petitioners filed petitions with the D.C. Circuit court for rehearing en banc, i.e.,for a review of the case by all eight of the judges sitting on the D.C. Circuit court. Two judges voted to grant the en banc petitions and, in their statements supporting their dissent, they focused on EPA's regulation of stationary sources. The contested EPA regulations subjected GHG stationary source emissions to permitting under the CAA's Prevention of Significant Deterioration ("PSD") program for emission sources located in attainment areas. "Attainment" under the CAA applies to facilities that operate in areas of the U.S. whose ambient air conditions meet National Ambient Air Quality Standards ("NAAQS") for six regulated air pollutants. Even though GHGs are not a NAAQS-regulated pollutant, EPA interpreted the CAA requirements such that the PSD program applied to GHG emissions. Specifically, EPA interpreted the CAA's statutory trigger for PSD permitting - emission of "any regulated pollutant" - to apply to GHGs, not just NAAQS-regulated pollutants. Because the PSD program is triggered by emission levels that are relatively very low for GHG emissions (albeit relatively high when applied to emissions of NAAQS pollutants), EPA issued its Tailoring Rule, which modifies the CAA's statutory triggers for sources of GHG emissions. Under the Tailoring Rule, PSD requirements initially only apply to sources emitting GHGs of at least 75,000 or 100,000 tons per year ("tpy"), rather than the statutory levels of 100/250 tpy that are applied to the NAAQS pollutants. EPA justified its Tailoring Rule on three grounds: (1) implementing the CAA's tpy triggers for GHGs would lead to "absurd results" not intended by Congress; (2) the administrative burden that would otherwise be imposed; and (3) the agency's authority to implement statutory requirements over time. Rather than addressing the substance of EPA's bases for the Tailoring Rule, the Circuit Court held that neither industry nor State petitioners had standing to address the Tailoring Rule. Basically, the D.C. Circuit panel found that petitioners failed to show that the Tailoring Rule caused "injury in fact" or that vacating the rule would redress the injury.

The dissenting judges took issue primarily with the substance of EPA's decision to apply the PSD program to GHG emissions. In her statement dissenting from the denial of rehearing, Judge Brown began by lamenting the Supreme Court's 2007 decision, Massachusetts v. EPA, 549 U.S. 497 (2007), in which the Court decided that the CAA's regulation of pollutants from automobiles included GHGs, if EPA determined that such emissions endangered public health. Specifically, she "engages Massachusetts's interpretive shortcomings in the hope that either Court or Congress will restore order to the CAA." (Brown dissent, slip op. 2.) Judge Brown also explored her view that, even after Massachusetts, EPA is not entitled to apply the PSD program to GHG emissions. She notes that EPA itself recognized and promoted the "absurdity" of applying the CAA as written to GHG emissions, and finds that EPA does not have the power to "preempt legislative prerogatives", which repeatedly failed to regulate GHGs. (Id., 13.) She pronounced that "[t]he real absurdity is that this unprecedented expansion of regulatory control, this epic overreach, may very well do more damage to the well being of Americans than GHGs could ever do." (Id.) Judge Brown also relied on Supreme Court precedent under the "major questions" doctrine, Food & Drug Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000), to urge that administrative agencies should not receive deference "on questions of great significance more properly resolved by the legislature." (Id., 14.) Finally, Judge Brown took issue with the panel's decision on standing, finding that petitioners' standing in this case was no more speculative than the petitioners' standing that the Supreme Court recognized as sufficient in Massachusetts. Judge Brown concluded, "In denying rehearing en banc, this Court has read Massachusetts to its illogical ends and it is American industry that will have to pay. That this Court did so is unsurprising, but certainly not fated." (Id., 22-23.)

Judge Kavanaugh, in his dissent, noted that "[t]his case is plainly one of exceptional importance…[with] massive real-world consequences." (Kavanaugh dissent, slip op. 1.) He reviewed the CAA's language and found that the CAA's PSD language should more logically and appropriately be interpreted to mean that it applied only to NAAQS pollutants and not to GHGs. He noted that this more "straightforward" interpretation avoided the "absurdities" that lead to EPA's Tailoring Rule. (Id., 6, 17.) Judge Kavanaugh concluded by finding that EPA's regulation of GHGs under the PSD program put "the bedrock underpinning of our system of separation of powers…at stake." (Id., 18.) Because "EPA went well beyond what Congress authorized for the [PSD] statute", it is the court's duty to enforce the statutory boundaries and require EPA to read the CAA in a manner that avoids its application to GHGs from stationary sources. (Id., 21.)

In response to the dissents, three Circuit court judges (Sentelle, Tatel, and Rogers) issued a statement in support of the denial of the en banc petition. They rejected Judge Brown's view that Massachusetts did not envision the far-reaching consequences leading to control of GHG emissions from stationary sources. They also disagreed with Judge Kavanaugh's limit of the PSD program to NAAQS pollutants, stating that "the panel's interpretation of the statute is the only plausible one." (Order denying pet. for rehrg., slip op. 3.) They agreed, however, with Judge Kavanaugh that separation of powers is an important issue, but found that "Congress spoke clearly, EPA fulfilled its statutory responsibilities, and the panel, playing its limited role, gave effect to the statute's plain meaning." (Id., 4.)

All of the judges issuing opinions in response to the petitions for en banc rehearing were speaking to the Supreme Court, which will decide whether to grant the expected petition for permission to appeal to that Court. The petition for writ of certiorari before the Supreme Court must be filed within 90 days after entry of judgment in the Circuit court.

U.S. Appellate Court Defines Settling Parties' Rights to CERCLA Contribution and Cost Recovery

Sigel_Gabrielle_COLORBy Gabrielle Sigel

 

On December 19, 2012, the U.S. Court of Appeals for the Seventh Circuit issued a panel decision that clarifies the law within that Circuit on issues left unresolved after several U.S. Supreme Court's decisions interpreting certain provisions of the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. § 9601, et seq. ("CERCLA"). In Bernstein v. Bankert, No. 11-1501 (U.S. Ct. App. 7th Cir., Dec. 19, 2012), the appellate court addressed the rights of parties, who settle with U.S. EPA, to pursue non-settling parties for payment of their costs. The court's decision revived CERCLA causes of action that a lower court had ruled were barred under CERCLA's statutes of limitations.

The Bernstein plaintiffs are trustees of a fund that had been established to pay costs of complying with two Administrative Orders on Consent ("AOCs") that potentially responsible parties ("PRPs") had signed with U.S. EPA ‒ one in 1999 and one in 2002 ‒ to address contamination of a property in Indiana known as Third Site. At Third Site, prior to 1982, the now defunct Environmental Chemical and Conservation Company ("Enviro-Chem") had conducted waste handling and disposal activities. The 1999 AOC, which had been executed by both de minimis and other PRPs, required an environmental investigation and engineering analysis at the Site and payment of government costs. In October 2002, U.S. EPA approved the settling parties' activities under that first AOC. In November 2002, U.S. EPA issued a second AOC, this one requiring PRPs to pay for the removal action that EPA selected for the Site. Although several PRPs paid into the trust established to fund the requirements of both AOCs, the alleged former individual owners of the Site ("the Bankerts"), their corporate entity Enviro-Chem, and their insurers did not pay.

In 2008, while the removal action was still ongoing, the trustees filed a complaint against the Bankerts in the Southern District of Indiana seeking CERCLA § 9607 cost recovery, a declaration of CERCLA liability, cost recovery under Indiana's Environmental Legal Actions statute ("ELA"), and recovery under other state law claims. In response to the Bankerts' summary judgment motion, the trial court first found that the trustees could not bring a § 9607 cost recovery claim, only a § 9613(f) contribution claim, and granted the Bankerts' motion for summary judgment on statute of limitations grounds with respect to the federal and state law claims, mooting claims for declaratory judgment and against the insurers. The trustee plaintffs appealed.

The appellate court first addressed the lower court's decision that the trustees could only bring a § 9613(f) contribution claim, and not a § 9607 cost recovery claim, each of which claim has a different statute of limitations. The court provided an overview of CERCLA rights of action, including when they can be triggered. The court found that "under the plain terms of the statute": (1) a person who has been sued under §§ 9606 or 9607 can bring a § 9613(f)(1) contribution action; (2) a person who has resolved liability to the federal or state government for all or some of its costs of a response action can bring a § 9613(f)(3)(B) contribution action; and (3) a person who does not fit into the qualifications for a contribution action, but still has incurred recoverable costs, can bring a § 9607 cost recovery action. (Slip op. 18-19.) The court then analyzed the trustees' rights under each of the AOCs individually, an approach which neither side had taken in their arguments before the court.

Specifically, the court first focused on the 1999 AOC, which it determined that U.S. EPA had approved as completed in October 2000. Thus, the court determined, in October 2000, the settling PRPs had resolved their liability to the government because the government's release of and covenants not to sue the settling PRPs only applied once the work was approved and completed. Because the settling PRPs had resolved their liability to the government, they could bring a contribution action under § 9613(f)(3)(B). The court rejected plaintiffs' claim to a § 9607 cost recovery action, even though they had sustained "necessary costs of response," holding that a plaintiff "is limited to a contribution remedy when one is available." (Slip op. 27.) However, the court then found that plaintiffs' contribution action, filed in 2008, was barred under CERCLA's statutes of limitations. The court did not, however, definitively determine which such statute applied. The Bankerts argued that the statute began running when the AOC was executed in 1999, based on CERCLA § 9613(g)(3), which provides a 3-year period to file contribution action after the signing of a de minimis settlement agreement.  Trustees accepted that argument with respect to de miminis parties' claims, but not with respect to the claims of other settling PRPs. The trustees argued that, because there is a "gap" in the statutory language with respect to non-de miminis parties' claims, the § 9613(g) statute of limitations applicable to § 9607 cost recovery actions should apply. The court found that under either approach, the statute had run prior to the 2008 court filing – either in 2002, 3 years after the AOC was signed, or in 2003, 3 years after the completion of the removal action required in the first AOC.

The court next found that because the work under the 2002 AOC was still continuing, plaintiffs had not yet triggered their release and covenant not to sue from the government. Because their liability to the government was not yet resolved, they could not bring a § 9613 contribution action. Because a contribution action was not available, and because they allegedly had incurred response costs, plaintiffs were able to bring a § 9607 cost recovery action. Because the removal action was not yet completed, the 3-year statute of limitations following the completion of a removal action had not yet begun to run. The court rejected the Bankerts' argument that those "compelled" to incur response costs could not recover under § 9607, finding that neither Supreme Court precedent nor other legal authority required that result. Therefore, plaintiffs could pursue a § 9607 cost recovery action and a declaratory judgment action for costs incurred under the 2002 AOC. The court noted, however, that plaintiffs may not be able to impose joint and several liability because, based on the Supreme Court's decision in Burlington N. and Santa Fe Ry. Co. v. U.S., 556 U.S. 599 (2009), the Bankerts may be able to show a "reasonable basis for apportionment" of their liability. (Slip op. 37.)

The appellate court also found that Indiana's 10-year catch-all statute of limitations applied to the ELA claim and that the statute applies separately to each of the separate AOCs, because each had a separate obligation to pay and, hence, a separate "injury" for statute of limitations purposes, even though both AOCs, as well as prior orders issued by U.S. EPA, pertain to the same Site. In reaching this conclusion, the court rejected the Bankerts' request to certify questions about the state statute of limitations to the Indiana Supreme Court for decision.

Finally, the court found that the Bankerts' insurer was not entitled to summary judgment with respect to its coverge obligations for the Third Site. The insurer previously had won a defense to coverage with respect to a different Enviro-Chem site, and had sought to bar coverage here on claim preclusion or issue preclusion grounds. The court found that the facts concerning the Third Site were distinct so that the trial court needed to separately consider the insurer's coverage obligations at that site.

The Bernstein decision resulted in several important CERCLA and related holdings that, unless modified upon rehearing or en banc or by the Supreme Court, will govern environmental litigation within the Seventh Circuit. Those holdings include:

  • A PRP who qualifies for a CERCLA § 9613(f) contribution action must use that cause of action to recover costs from other PRPs, and cannot use a CERCLA § 9607 cost recovery action.
  • Each government settlement agreement at a single site invokes a distinct payment obligation, each of which can be the basis for a CERCLA cause of action and, therefore, a new running of the applicable statute of limitations.
  • A PRP's right to bring a CERCLA § 9613(f)(3)(B) contribution action in response to its settlement with the government is not triggered unless and until the government issues a final release of the PRP's liability, typically upon acceptance of all work under the settlement agreement. Until that time, a PRP seeking to recover costs of response can only proceed under § 9607.
  • A PRP who executed a settlement with the government and who was "compelled" to pay response costs is entitled to proceed under § 9607; however, that plaintiff PRP will not be able to impose joint and several liability if the defendant PRPR can prove a reasonable basis for apportioning liability.

Federal Appellate Court Gives U.S. EPA Greenhouse Gas Regulatory Victory

Sigel_Gabrielle_COLORBy Gabrielle Sigel

 

On June 26, 2012, the U.S. Court of Appeals for the District of Columbia Circuit handed the Obama Administration's Environmental Protection Agency a significant victory in its attempts to regulate greenhouse gases ("GHGs") under the Clean Air Act ("CAA"). Coalition for Responsible Regulation v. EPA, No. 09-1322, U.S. Ct. App. D.C. Cir. (6/26/12). Several States, led by Virginia and Texas, and industry groups had petitioned the Circuit Court in response to EPA's series of regulations, beginning in 2009, that implemented CAA provisions with respect to GHGs. Those regulations included control of GHG emissions from vehicles, as well as from stationary sources. EPA's regulatory approach is highly controversial, particularly because it used non-statutory reasons to justify its approach to regulating GHGs from stationary sources. The Circuit Court upheld all of EPA's regulations in a unanimous per curiam decision.

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OSHA Issues Directive for Approach to Deceased Workers’ Families

Sigel_Gabrielle_COLORBy Gabrielle Sigel

 

The Occupational Safety and Health Administration ("OSHA") has issued its first official directive regarding OSHA's communications with a deceased worker's family after the occurrence of a workplace fatality. OSHA Directive No. CP: 02-00-153, effective April 17, 2012. The Directive provides guidance, not regulations, on how OSHA will communicate with the family from the point that OSHA begins its investigation of the accident through potential settlement of any citation that may be issued relating to the fatality. The Directive imposes obligations on OSHA personnel, not on an employer, but employers would be well-advised to be aware that OSHA will be initiating these ongoing communications.

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U.S. Court of Appeals Mandates Decision on Act of War Defense to WTC CERCLA Claims

Sigel_Gabrielle_COLORBy Gabrielle Sigel

 

The U.S. Court of Appeals for the Second Circuit has issued a mandate to the U.S. District Court for the Southern District of New York, requiring the lower court to determine whether contamination from the collapse of the World Trade Center buildings are subject to the "act of war" affirmative defense from liability under the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. § 9601, et seq. ("CERCLA"). In re Sept. 11th Litigation: Cedar & Washington Assoc. LLC v. Port Authority of New York and New Jersey, No. 10-CV-9197 (U.S. Dist. Ct. S.D. N.Y. May 23, 2012).

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OSHRC Clarifies Who Is Responsible Executive for Injury Recording Purposes

Sigel_Gabrielle_COLORBy Gabrielle Sigel

 

The federal Occupational Safety and Health Review Commission ("OSHRC") recently clarified who can qualify as a "company executive" authorized to certify the accuracy of a company's annual summary of workplace injuries and illnesses. Secretary of Labor v. C.P. Buckner Steel Erection Inc., No. 10-1021, OSHRC, Apr. 25, 2012. The annual summary is required by regulations under the Occupational Safety & Health Act, 29 CFR 1904.32.

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Corporate Purchaser Not Liable to the Government for CERCLA Liability; Former Operator Must Begin Cleanup

Sigel_Gabrielle_COLORBy Gabrielle Sigel

 

In long-running litigation regarding one of the costliest Superfund cleanups in the country, the U.S. District Court for the Eastern District of Wisconsin reversed a decision it reached just 5 months earlier and found that Appleton Papers Inc. ("API") was not liable to the federal government for performance of a cleanup. U.S. v. NCR Corp. And Appleton Papers Inc., No. 10-6-910 (U.S. Dist. Ct. E.D. Wis. Apr. 10, 2012). The cleanup involves PCBs discharged into the Fox River for decades before CERCLA was enacted, by a division of NCR Corp. then called the Appleton Papers Division.

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Federal Court Finds CERCLA Insurance Case Filed 7 Years After Notice, Timely

Sigel_Gabrielle_COLORBy Gabrielle Sigel

 

In Wiseman Oil Co., Inc. v. TIG Ins. Co., the federal court refused to dismiss claims for breach of the insurer's duty to defend and duty of good faith in an insurance coverage action filed in 2011 seeking to recover for CERCLA claims brought in 1997 by the federal government. No. 2:11-CV-1011-JFC-LPL (U.S. Dist. Ct. W.D. Pa. May 22, 2012).

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Federal Appellate Courts Limit OSHA Injury Recordkeeping Enforcement

Sigel_Gabrielle_COLORBy Gabrielle Sigel

 

Two recent U.S. Court of Appeals decisions limit the Occupational Safety and Health Administration's ("OSHA") ability to enforce regulations regarding workplace injury and illness reporting. OSHA requires most U.S. employers to prepare detailed logs of every significant work-related injury and illness. 29 C.F.R. Part 1904. The injury/illness must be recorded within seven days of an employer's knowledge of the incident. 29 C.F.R. 1904.29(b)(3). Two different Court of Appeals decisions addressed OSHA's enforcement with respect to the injury/illness regulations.

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Illinois Supreme Court Limits Environmental Groups’ Appeal Rights

 

By Gabrielle Sigel and Phoebe B. Scott

On October 27, 2011, the Illinois Supreme Court, in a 5-2 decision, held that the Sierra Club and Peoria Families Against Toxic Waste ("the opposition groups") did not have standing to seek review of an Illinois Pollution Control Board ("Board") decision granting a company's petition to be relieved of compliance with a hazardous waste regulation. Sierra Club v. The Illinois Pollution Control Board, No. 110882 (Ill. Oct. 27, 2011).

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Environmental Citizen Groups Have No Standing to Challenge Climate Change Impacts of Federal Actions

Sigel_Gabrielle_COLORBy Gabrielle Sigel

 

Two U.S. district courts recently issued separate decisions rejecting environmental groups' challenges to federal actions based on alleged climate change injuries. In both cases, using the same legal test, the courts found that the environmental groups did not have standing to pursue their claims against the federal agencies. This is an important development in climate change litigation, which in the past has addressed standing only in the tort context or regarding claims brought by States, not when private parties were challenging federal agency actions.

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Climate Change Update for August 2011 Now Available

Sigel_Gabrielle_COLORBy Gabrielle Sigel

 

Jenner & Block's latest monthly Climate Change Update, for August 2011, is available on the Firm's website.

The Climate Change Update summarizes on a monthly basis important climate change legislative, litigation, regulatory and research developments. The August 2011 Climate Change Update includes a discussion of the Obama Administration's announcement of the first-ever GHG emission standards for medium/heavy-duty trucks and for other heavy-duty vehicles. The update also includes a discussion of important developments affecting the ability of environmental citizen groups to bring federal lawsuits challenging federal regulations based on alleged climate change injuries.

Jenner & Block's Climate Change Update for July 2011 Now Available

Sigel_Gabrielle_COLOR

By Gabrielle Sigel

 

Jenner & Block's monthly Climate Change Update, covering state, regional, national and international legislative, regulatory, and business developments affecting climate change and new technology law, is now available for July 2011.  The July Climate Change Update, as well as all prior months, can be found at Jenner & Block's Climate Change Update Resource Center.  This month's update includes a discussion of Congressional proposed amendments to EPA's pending appropriations bill targetting climate change programs and deveopments in the lawsuit brought by environmental groups seeking to compel EPA to regulate, under the Clean Air Act, GHG emissions from nonroad vehicles and engines, including marine vessels and aircraft engines. 

Gabrielle Sigel to Speak At Chicago Bar Association Environmental Law Committee Regarding Chrome Regulation

Sigel_Gabrielle_COLORBy Gabrielle Sigel

 

On May 3, 2011, Gabrielle Sigel, a partner in Jenner & Block's Environmental Law Practice, shall provide a presentation to the Environmental Law Committee of the Chicago Bar Association addressing the overlap in OSHA and EPA regulation regarding chrome use in the workplace.  Both OSHA and EPA have detailed regulations regarding chrome emissions in the workplace, employee exposures, and work practices.  Ms. Sigel will explore this area of regulation to demonstrate the extent to which these regulations overlap and present significant compliance requirements.  The Chicago Bar Association committee meeting will be hosted by Jenner & Block.  Further details regarding attendance are provided in the attached announcement.

Gabrielle Sigel is a founding Partner of the Firm’s Environmental Law Practice, Co-Chair of Jenner & Block’s Climate and Clean Technology Law Practice, and a member of the Environmental Litigation Practice.  Ms. Sigel regularly represents clients in workplace safety and health enforcement and compliance matters and  in complex environmental statutory, common law, Superfund enforcement, toxic tort, and cost recovery actions. 


EPA Adds and Proposes New Sites to Superfund List

Sigel_Gabrielle_COLORBy Gabrielle Sigel

 

In the March 10, 2011 edition of the Federal Register, the United States Environmental Protection Agency (EPA) issued the final rule adding 10 new sites to the National Priorities List (NPL).  EPA also issued a proposed rule to add 15 new sites to the list of those sites that it proposes to add to the NPL in the future. 

The NPL is authorized by the Comprehensive Environmental Response, Compensation and Liablity Act, 42 U.S.C. 9601, et seq (also known as Superfund).  Only EPA is allowed to propose and finalize the sites on the NPL, which it determines: (1)  based on the ranking of a site with a score of 28.50 or higher under the agency's Hazard Ranking System (40 CFR part 300); (2) if a site is designated by a state as its top priority site (40 CFR 300.452(c)(2); or (3) if EPA determines, without using the HRS, that the site poses a significant threat to public health based on a health advisory issued by the Agency for Toxic Substances and Disease Registry (ATSDR) and EPA believes that remedial action is more cost-effective than removal action at the site (40 CFR 300.452(c)(3).  The NPL includes those sites with known or threatened releases of hazardous substances that may present an imminent or substantial danger to public health or welfare.  The NPL is to guide EPA's priorities for further investigatory and remedial action, but is not a determination of any party's liability.  The NPL is divided between sites that EPA may address and those owned or operated by other federal agencies, which then will be addressed  by those agencies.

The ten new sites on the NPL are:

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Property Owner Faces RCRA Liability for Refusing to Allow Prior Owner to Remediate

Sigel_Gabrielle_COLORBy Phoebe B. Scott

 

On January 21, 2011, the U.S. District Court for the Central District of Illinois held that a current property owner’s refusal to grant a prior owner access for the purpose of remediation could result in the current owner being held liable as a “contributor” under the Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. § 6972(a)(1)(B). Carlson v. Ameren Corp., No. 10-1230 (C.D. Ill. Jan. 21, 2011).  This section of RCRA allows a private right of action, known as a “citizens suit,” for injunctive relief against any person “who has contributed or who is contributing to the past or present handling, storage, treatment, transportation or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment.”

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Climate Change Year in Review 2010 Published

LexisNexis announced today that it published its annual year-in-review article on climate change developments, authored by Jenner & Block partner Gabrielle Sigel.  The article, titled "2010 Climate Change Year in Review: The Executive Branch Takes Charge" is posted on Lexis.com at 2011 Emerging Issues 5502. This comprehensive article describes the most significant regulatory, legislative and litigation climate change developments in the U.S. during 2010, with a special focus on the role of the Executive Branch in driving the climate change agenda.  Ms. Sigel is Co-Chair of Jenner & Block’s Climate and Clean Technology Law Practice, a founding Partner of the Firm’s Environmental, Energy and Natural Resources Law Practice, and a member of the Environmental Litigation Practice.  Ms. Sigel regularly represents clients in complex environmental statutory, common law, Superfund enforcement, and cost recovery actions.  Her work at the forefront of climate and clean technology law includes advising on greenhouse gas emission reporting and tracking, permitting issues, and clean energy siting challenges.

Ms. Sigel's article also posted at:  http://www.lexisnexis.com/COMMUNITY/ENVIRONMENTAL-CLIMATECHANGELAW/blogs/environmentallawandclimatechangeblog/archive/2011/01/27/jenner-amp-block-2010-climate-change-year-in-review-the-executive-branch-takes-charge.aspx

OSHA Succumbs to Noisy Public Comment

Sigel_Gabrielle_COLORBy Gabrielle Sigel

 

On January 19, 2011, in response to vociferous objection from the regulated community, OSHA withdrew its proposed official interpretation of the term "feasible administrative or engineering controls" as used in its General Industry and Construction Occupational Noise Exposure standards.   The standards state that employers must use administrative or engineering controls, rather than personal protective equipment (PPE), to reduce noise exposures that are above acceptable levels when such controls are  "feasible," i.e., "capable of being done," even if the cost of such controls are much more than the effective use of PPE, such as ear plugs.  Notably, OSHA withdrew this proposed interpretation before the close of public comments in March 2011.

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