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).
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.
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).
Environmental Citizen Groups Have No Standing to Challenge Climate Change Impacts of Federal Actions
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.
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 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
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.
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:
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.”
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
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.
On January 11, 2011, the U.S. Supreme Court denied the petition for a writ of mandamus filed by the plaintiffs in Comer v. Murphy Oil U.S.A., a climate change common law case with an unusual procedural outcome in the Fifth Circuit Court of Appeals. In re Comer, et al., No. 10-294 (docketed Aug. 30, 2010). The underlying complaint was brought by property owners who claimed that the greenhouse gas ("GHG") emissions of the defendant energy, fossil fuel-burning, and chemical companies had worsened the impacts of Hurricane Katrina on their properties and that they were entitled to damages and other relief under, inter alia, common law nuisance, trespass, and negligence theories.
On January 5, 2011, at 2:30 p.m. EST, OSHA will host a live web chat to discuss its semi-annual regulatory agenda and annual plan, which were published in the Federal Register on December 20, 2010. Members of the public are entitled to join the webcast. These documents describe OSHA's regulatory priorities for the next 6-12 months.
Settling lawsuits filed by certain States (located in the Northeast and West), environmental groups, New York City and the District of Columbia, on December 23, 2010, U.S. EPA announced that it will set New Source Performance Standards ("NSPS") for greenhouse gas ("GHG") emissions from fossil fuel-fired electric power plants and petroleum refineries. NSPS are required under Section 111 of the Clean Air Act ("CAA"). EPA agrees that it will issue proposed standards by July 26, 2011, for power plants, and by December 10, 2011, for refineries. EPA also agrees that it will issue the standards as final rules for power plants and refineries by December 10, 2011, and November 10, 2012, respectively. EPA's settlement agreements are subject to a 30-day public comment period before they are final.
On July 26, 2010, the Fourth Circuit overturned a January 2009 district court decision that had found that emissions from 11 coal-fired power plants located in Alabama, Kentucky and Tennessee that were allegedly impacting North Carolina constituted a public nuisance. North Carolina v. Tennessee Valley Authority, No. 06-2131 (4th Cir., July 26, 2010). In January 2009, the U.S. District Court for the Western District of North Carolina agreed that emissions from these plants constituted a public nuisance and ordered the Tennessee Valley Authority ("TVA"), which owned and operated these plants, to install pollution control technology that was estimated to cost in excess of $1 billion. (Click here to view the district court decision.) The district court's ruling was somewhat surprising in that these plants were all properly permitted facilities and there were no allegations that these plants were operating in contravention of any applicable permit, rule or regulation.
On July 21, 2010, the Education and Labor Committee for the House of Representatives voted 30-17 to send to the full House the Robert C. Byrd Miner Safety and Health Act of 2010 (H.R. 5663). The bill incorporates portions of the previously introduced Protecting America's Workers Act (H.R. 2067, S. 1580) and addresses safety in both mines and other workplaces. With respect to revisions to the Occupational Safety and Health Act, the Byrd bill increases civil and criminal penalties, expands family members' rights in settlement of violations, requires abatement during the period that citations are contested, and enhances protection for whistleblowers. The Committee also passed amendments to H.R. 5663 which affects the employer's burden of proof and the statutory standard for criminal liability. In addition, the Committee approved providing OSHA enhanced mechanisms for requiring state plan programs to conform to federal requirements. The authority of the Mine Safety and Health Administration ("MSHA") would be expanded to allow for increased penalties and enhanced enforcement, including with respect to the right to close down an unsafe mine, subpoena documents and testimony, and require additional training for miners. Republican efforts to modify these expansions of OSHA's and MSHA's authority were largely rejected, and the bill was voted out of Committee along party lines.
On June 25, 2010, Congress confirmed the appointments to the two last vacant positions on the U.S. Chemical Safety Board ("CSB"): Dr. Rafael Moure-Eraso, as CSB Chairman; and Mark Griffon, as CSB Member. On June 18, 2010, the CSB also informed Congressmen Waxman and Stupak, of the House Committee on Energy and Commerce, that the CSB intends to investigate the April 20, 2010 Deepwater Horizon oil rig explosion. This investigation is occurring in response to a request made by the Congressmen earlier in June. The CSB, in operation since 1998, is an independent agency charged with investigating industrial chemical incidents. It has no authority to issue fines or citations, but its recommendations are often relied on by other government agencies, industry organizations, and unions.
In its June 18, 2010 letter confirming that the CSB intends to proceed with its investigation of the "root causes" of the Deepwater Horizon incident, then Chairman John Bresland stated that the CSB was uniquely able to assess the incident due to its "past work on BP's culture and corporate safety oversight." In particular, it noted that CSB's investigators of the Deepwater Horizon incident will include those who investigated the March 23, 2005 explosion at BP's Texas City refinery. However, the CSB emphasized that it did not intend to investigate the response to, or the impact of, the Gulf oil spill.
Finally, the CSB informed Congress that to conduct the Deepwater Horizon explosion investigation it would need to rapidly wind down or terminate other investigations, and that it would be requesting additional funding, as needed, from Congress. The CSB noted that the investigation of the Texas City refinery incident alone cost the agency approximately $2.5 million. In its letter, the CSB did not inform Congress of any target date for the conclusion of its Deepwater Horizon investigation.
Supplementing the greenhouse gas ("GHG") reporting regulations issued in October 2009, on June 28, 2010, U.S. EPA imposed annual reporting requirements on four additional GHG sources: underground coal mines; industrial water treatment systems; industrial waste landfills; and magnesium production facilities. The magnesium facilities' principal GHG emission of concern is sulfur hexafluoride, which has been reported as having a global warming potential of 22,800 times that of carbon dioxide ("CO2"). The other three new reporting sources have methane as their principal GHG emission. Methane has 20 times the global warming potential of CO2. These four new source categories must begin collecting emissions data on January 1, 2011, and submit their first annual reports to the EPA on March 31, 2012. EPA's final rule on the new source categories for GHG reporting can be found here. EPA's October 2009 rule requiring GHG reporting can be found here.
On June 18, 2010, OSHA implemented its Severe Violators Enforcement Program ("SVEP") against employers who have "demonstrated indifference" to OSH Act compliance. (Click here to read OSHA's SVEP Instruction in its entirety.) The OSHA Instruction describing the program, CPL 02-00-149, replaces OSHA's Enhanced Enforcement Program, which was first announced in 2003.
An employer is deemed to qualify as one who has demonstrated indifference if any of the following criteria are met:
- Fatality or catastrophe (3+ employees hospitalized) after one or more willful or repeat violations or a failure to abate a serious violation.
- Two or more willful, repeat or failure-to-abate violations based on high gravity serious violations of a "High-Emphasis Hazard." A High-Emphasis Hazard includes fall hazards in all industries and amputation, combustible dust, crystalline silica, lead, excavation/trenching, and shipbreaking hazards as covered by OSHA National or Special Emphasis Programs.
- Three or more willful, repeat, or failure-to-abate violations based on high gravity serious violations related to hazards from the release of a highly hazardous chemical, as defined in the Process Safety Management Program, 29 CFR § 1910.119.
In Secretary of Labor v. ConocoPhillips Bayway Refinery, OSHRC No. 07-1045 (June 15, 2010), the Occupational Safety & Health Review Commission ("OSHRC") modified the judgment of an Administrative Law Judge ("ALJ") who had affirmed OSHA's citation of violations of the asbestos regulations as "serious violations." (Click here to read OSHRC's Decision and Order) In this case, Conoco employees were working in an underground pipeline when they chipped and cut through tar-like material containing asbestos at between 2 to 25%. OSHA found that Conoco had violated the "asbestos in construction" standard, 29 CFR § 1926.1101. OSHA characterized all of the violations as "serious," and the ALJ affirmed that characterization and assessed a penalty of $1,875 for each of the nine cited items.
OSHRC reversed the "serious" characterization, finding that OSHA had not proven that the 20-30 minutes of work on the coating around a pipe sleeve "could have generated, and exposed Conoco employees to, a harmful amount of asbestos." OSHRC Opinion at p. 3. The employees were found to be doing Class II asbestos work, which is "not presumed to generate any particular level of asbestos." Id. at p. 4.
Given that the Secretary of Labor had failed to introduce "case-specific evidence" of an exposure to a harmful amount of asbestos, OSHRC changed the violations' characterization to "other-than-serious" and reduced the penalty to $350 per violation.
On June 2, 2010, the U.S. Court of Appeals for the Ninth Circuit held that a non-settling PRP's right to contribution under CERCLA was a legally sufficient interest to justify intervention to challenge a proposed consent decree between the federal government and the settling PRPs, joining ranks with the Eighth and Tenth Circuits, the only other U.S. appellate courts to address the issue. The case is U.S. v. Aerojet Gen. Corp., No. 08-55996 (9th Cir. Jun. 2, 2010).
On May 13, 2010, U.S. EPA announced that it had finalized its “Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule,” which prescribes how Clean Air Act (“CAA”) permitting requirements are applied to stationary sources of greenhouse gas (“GHG”) emissions. The rule “tailors” the application of the CAA’s Prevention of Significant Deterioration (“PSD”) and Title V permitting requirements so that only stationary sources of a large amount of GHG emissions are required to obtain permits. Such permits must demonstrate the use of best available control technologies (“BACT”) applied to GHG emission points. The application of the final rule is more “tailored” than EPA’s original September 2009 proposal, in that the final rule’s triggering emission amount is a minimum of 75,000 tons per year (“tpy”), not the 25,000 tpy trigger originally proposed.
On the afternoon of May 12, 2010, U.S. Senators Kerry (D‑MA), and Lieberman (I‑CT), jointly introduced their “discussion draft” of the American Power Act (“the APA”), as a Senate version of comprehensive climate change regulation. The U.S. House of Representatives passed its comprehensive climate change bill, the Waxman-Markey, American Clean Energy and Security Act, H.R. 2454, in June 2009. The Kerry-Lieberman bill is the result of negotiations ongoing since Fall 2009, attempting to develop a bipartisan climate change bill, with support from both industry and environmental groups. The 987-page bill unveiled on May 12 intends to reduce U.S. industry-wide GHG emissions from a 2005 baseline by 17% in 2020 and by 80% in 2050, through a cap-and-trade scheme. As currently structured, the APA has six substantive, somewhat overlapping, sections.
In an April 28, 2010, memorandum to all OSHA Regional Administrators, Dr. David Michaels, Assistant Secretary of Labor for Occupational Safety & Health, reiterated OSHA’s policy that employee training must be conducted in a manner that employees can understand. Many OSHA standards explicitly require training and some require that employees acquire knowledge about a particular issue, but none specify the language in which the training must be provided.