On August 28, 2017, Shell Oil Company became the latest target of a Clean Water Act citizen suit lawsuit filed by the Conservation Law Foundation (“CLF”). Coming on the heels of the unfolding disaster in Texas caused by Hurricane Harvey, this most recent lawsuit alleges that Shell’s stormwater pollution prevention plan for its Providence, Rhode Island Terminal is inadequate in that it fails to account for sea level rise, increased precipitation generally, and the increased frequency of storms that CLF alleges will occur due to climate change. This latest lawsuit follows a previously filed citizen suit by CLF against Exxon under both the Clean Water Act and Resource Conservation and Recovery Act relating to Exxon’s Everett Terminal located in Everett, Massachusetts. A hearing on Exxon’s pending motion to dismiss is currently set for September 12, 2017.
Events like Hurricane Harvey will provide continuing fodder for what is likely to be sharp increase in citizen suits being filed by environmental organizations seeking to advance their agendas in light of the current regulatory climate.
On August 22, 2017, a divided D.C. Circuit panel sided with the Sierra Club and other environmental groups by concluding that the Federal Energy Regulatory Commission ("FERC") didn't adequately analyze the impacts of greenhouse gas ("GHGs") emissions that may result from a $3.5 billion natural gas pipeline to be constructed through Florida. The project in question is an approximately 500-mile long natural gas pipeline scheduled to be completed in 2021 and which is projected to carry over one billion cubic feet of natural gas per day.
Section 7 of the Natural Gas Act vests jurisdiction to approve such a pipeline with FERC. Before such a pipeline can be approved, FERC must grant the developer a certificate of public convenience and necessity (often referred to as a Section 7 certificate). Prior to issuing the Section 7 certificate for this project, FERC prepared an environmental impact statement ("EIS") as required by the National Environmental Policy Act ("NEPA"). Sierra Club and other environmental groups challenged FERC's EIS and subsequent Section 7 certificate on the grounds that it failed to adequately consider the pipeline's contribution to GHG emissions and its impact on low-income and minority communities.
We previously reported that on June 6, 2017, EPA Administrator Scott Pruitt announced that EPA was extending the deadline for promulgating initial area designations, by one year, for the 2015 ozone National Ambient Air Quality Standards (NAAQS). The Obama Administration promulgated new ozone NAAQS in October 2015, lowering the standards from 75 parts per billion (ppb) to 70 ppb. Under the Clean Air Act, EPA had two years, or until October 1, 2017, to designate areas in the U.S. as being in attainment or nonattainment with the new ozone NAAQS. The one-year extension would have pushed the deadline for those designation to October 1, 2018.
On August 1, 2017, 15 states and Washington D.C. filed a petition in the D.C. Circuit Court challenging EPA’s one-year delay of the ozone NAAQS deadline. Then, on August 2, 2017, EPA changed course and withdrew the extension. Now, EPA must designate areas as being in attainment or nonattainment with the new, 70 ppb ozone NAAQS by October 1, 2017.
More information about the ozone NAAQS and area designations is available on EPA’s website.
Not long after the Occupational Safety and Health Administration (OSHA) launched its Injury Tracking Application website for Electronic Submission of Injury and Illness Records on August 1, 2017, OSHA has temporarily suspended user access to the site due to an apparent security breach. Reports indicate that last week, OSHA received an alert from the United States Computer Emergency Readiness Team in the Department of Homeland Security that indicated there was a potential compromise of user information for the injury tracking application. OSHA has stated that one company appears to have been affected and that company has been notified of the issue.
The Injury Tracking Application website currently has the following message posted:
Alert: Due to technical difficulties with the website, some pages are temporarily unavailable.
OSHA has not indicated when the website will be fully available again or whether any additional changes will result from this apparent breach. The current deadline for employers to submit injury and illness logs electronically is December 1, 2017.
Pro-Policyholder Talc-Related Asbestos Exposure Case Endorses Favorable Allocation Rule and Rejects Pollution Exclusion
A recent opinion from the Connecticut Appellate Court, R.T. Vanderbilt Co. v. Hartford Accident & Indemnity Co., 156 A.3d 539 (Conn. App. Ct. 2017), aides policyholders seeking coverage for asbestos-related long-tail liability claims under Commercial General Liability policies when responding to certain coverage defenses, including the allocation of risk for uninsured policy periods and the application of the pollution exclusion. In Vanderbilt, the court ruled on two significant issues—first, it endorsed the “unavailability of insurance” exception to the pro rata allocation method to allocate uninsured policy periods to the insurer, and second, it rejected the application of the pollution exclusion to talc-related asbestos exposure. As to the first, the court confronted a novel question under Connecticut law regarding whether the policyholder or the insurer should bear the risk for periods during which insurance coverage was commercial unavailable—commonly known as the “unavailability of insurance” exception to the pro rata allocation method. The court affirmed the existence of the exception, holding that the insurer should bear this risk. As to the second, the court rejected that the pollution exclusion applied, reasoning that the exclusions at issue barred coverage only when the exposure arose from “traditional environmental pollution” migrating through property or into the environment, but did not extend to “inhalation or ingestion of asbestos dust released in small quantities in an indoor environment during everyday activities.”
The Occupational Safety and Health Administration (OSHA) has officially launched its Injury Tracking Application website for Electronic Submission of Injury and Illness Records to OSHA. The website launch has been much anticipated following the Trump Administration’s delay of the compliance deadline in the 2016 rule titled “Improve Tracking of Workplace Injuries and Illnesses” (the Electronic Reporting Rule). As we previously reported on this blog, the Obama-era Electronic Reporting Rule required employers to submit injury and illness logs electronically, and the original compliance deadline was July 1, 2017. In June, OSHA extend the initial submission deadline for 2016 Form 300A data to December 1, 2017, to provide the new administration an opportunity to review the new electronic reporting requirements prior to their implementation and allow affected entities sufficient time to familiarize themselves with the new electronic reporting system.
On August 8, 2017, the United States District Court for the District of Columbia issued a decision concluding that the U.S. Environmental Protection Agency (U.S. EPA) did not have statutory authority to issue a 2015 rule that restricted the use of hydrofluorocarbons (HFCs) in a variety of products, including aerosols, motor vehicle air conditioners, commercial refrigerators and foams.
Section 612(a) of the Clean Air Act required manufacturers to replace ozone-depleting substances (ODS) with "safe" product substitutes. To that end, U.S. EPA was required to develop lists of "safe" and "prohibited" ODS substitutes. Pursuant to this directive, U.S. EPA placed HFCs on the list of "safe" substitutes and manufacturers began to replace ODS with HFCs.
However, over time, U.S. EPA began to learn that although not an ODS, HFCs were in fact greenhouse gases. As such, in 2015, U.S. EPA promulgated a final rule that moved HFCs off of the "safe" list and onto the "prohibited" list. See 80 Fed. Reg. 42,870 (July 20, 2015). As part of the 2015 final rule, U.S. EPA also then prohibited the use of HFCs in aerosols, motor vehicle air conditioners, commercial refrigerators and foams even if the manufacturers of these products had previously elected to replace the ODS in these products with the previously "safe" HFCs. A lawsuit was subsequently filed by manufacturers of certain HFCs.
The parties to the lawsuit both acknowledged that U.S. EPA had the ability to ban the use of ODS and that U.S. EPA could change or modify the lists of "safe" and "prohibited" ODS substitutes based on U.S. EPA’s assessment of the risks that those substances posed to human and the environment. However, the key dispute was whether U.S. EPA had the authority under Section 612 of the Clean Air Act to prohibit manufacturers from making products that contain HFCs if those manufacturers had previously replaced an ODS with a HFC that at the time was listed as a "safe" substitute.
The D.C. Circuit concluded that U.S.EPA did not have that authority. The court rejected U.S. EPA’s argument that the term “replace” as used in the statute was intended to apply each time a manufacturer uses a substitute substance as opposed to when the manufacturer originally “replaced” the ODS with the HFC finding U.S. EPA's proposed interpretation to “border on the absurd.” As such, the D.C. Circuit vacated the 2015 rule to the extent the rule required manufacturers to replace HFCs with a substitute substance on the "safe" list.
The Department of Homeland Security (DHS) announced yesterday its plans to waive numerous environmental laws to allow more expedient construction of barriers and roads in the vicinity of the international border near San Diego. The decision was signed by then DHS Secretary John Kelly and applies to a 15-mile border segment in San Diego where the Agency plans to upgrade fencing and build border wall prototypes.
DHS issued the waiver pursuant to its authority in Section 102 of the 2005 Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). This law grants the DHS Secretary a number of authorities necessary to carry out DHS’s border security mission. Citing this authority, the DHS notice makes clear that these infrastructure projects will be exempt from complying with critically important environmental laws such as the National Environmental Policy Act, the Endangered Species Act, the Clean Water Act and other laws related to wildlife, conservation, cultural and historic artifacts, and the environment.
This action has been under consideration by DHS and the subject of much discussion among environmental activists. The Center for Biological Diversity already sued DHS earlier this year seeking an updated environmental review of the southern border infrastructure projects.
According to yesterday’s notice, “…while the waiver eliminates DHS’s obligation to comply with various laws with respect to the covered projects, the Department remains committed to environmental stewardship with respect to these projects. DHS has been coordinating and consulting—and intends to continues to do so—with other federal and state agencies to ensure impacts to the environment, wildlife, and cultural and historic artifacts are analyzed and minimized, to the extent possible.”
Even in the wake of everything ongoing in D.C with the new Administration, this action is extraordinary and inconsistent with typical federal government practices, except in the case of an emergency or other exigent circumstances. The final decision will appear in the Federal Register soon.