EPA Can’t Dodge Gold King Mine Liability
By Steven M. Siros
U.S. EPA continues to be on the hook for damages associated with the Gold King Mine located in San Juan County, Colorado. Several years ago, a contractor working on behalf of U.S. EPA to address environmental impacts associated with a closed gold mine, destroyed a plug holding water trapped inside of the mine, causing the release of approximately three million gallons of mine waste water into Cement Creek, which was a tributary of the Animas River. Although U.S. EPA took responsibility for the incident, it has refused to pay damages incurred as a result of he release, leading to lawsuits being filed by a variety of plaintiffs, including the states of Utah and New Mexico, the Navajo Nation, and affected individuals. Plaintiffs asserted a variety of claims, including claims under CERCLA, RCRA, CWA, and the Federal Tort Claims Act (FCTA). U.S. EPA filed a motion to dismiss, arguing among other things, that it was entitled to sovereign immunity for damages resulting from an ongoing cleanup effort.
On February 28, 2019, the federal district court in New Mexico rejected U.S. EPA’s claim that it was protected from CERCLA liability on sovereign immunity grounds, noting that at least three circuit courts have found that U.S. EPA can face liability under CERCLA where U. S. EPA’s actions in remediating a site are alleged to have caused releases of hazardous wastes. The court also found that plaintiffs’ allegations (which included Utah and New Mexico, as well as the Navajo Nation and individuals), if proven, would demonstrate U.S. EPA’s liability as an “arranger,” “operator,” and “transporter” of hazardous substances. Specifically, Plaintiffs stated claims for arranger liability because they "allege that EPA took intentional steps to dispose of a hazardous substance.” With respect to operator liability, the court noted that Plaintiffs “allege that EPA managed, directed, or conducted operations specifically related to the pollution, that is, operations having to do with the leakage or disposal of hazardous waste.” Finally, regarding transporter liability, Plaintiffs “allege that EPA took steps to drain the mine and treat the water at the site.”
With respect to the RCRA, CWA, and FCTA claims, the court concluded that there were disputed issues of fact that precluded the court from being able to grant dismissal of those claims. We will continue to provide updates on this proceeding.
OSHRC Rules No General Duty Clause Hazard Or Feasible Abatement For Heat Exposure
By Gabrielle Sigel
In a 2-1 decision on February 28, 2019, the full Occupational Safety and Health Review Commission (“OSHRC”) vacated the U.S. Secretary of Labor’s Occupational Safety and Health Administration’s (“OSHA”) citation charging a roofing contractor with a “general duty clause” violation for exposing employees “to the hazard of excessive heat from working on a commercial roof in the direct sun” and separately vacated a citation for failure to train employees regarding heat-related risks. Sec’y of Labor v. A.H. Sturgill Roofing, Inc., OSHRC Docket No. 13-0224. OSHA had issued the citations following the physical collapse and subsequent death of a temporary worker on the first day of his work for the roofing company.
Different from a violation based on an OSHA regulation, a general duty clause violation alleges that the employer has violated the federal Occupational Safety and Health Act’s provision stating: “Each employer … shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.” 29 U.S.C. § 654(a)(1).
In Sturgill, OSHRC ruled that two of the requirements of a general duty clause violation—the existence of a hazard and a feasible means of abatement—had not been proven by the Secretary of Labor. Specifically, OSHRC ruled that, “upon weighing the evidence …, the Secretary has not established the existence of a hazard likely to cause death or serious physical harm.” (Op. at 4.) OSHRC’s majority rejected OSHA’s reliance on a National Weather Service heat index chart; the Secretary’s expert’s testimony, by a physician who formerly had served as OSHA’s medical officer, that worksite conditions were hazardous; and testimony of the coroner that the employee’s death was due to complications from heat stroke. With respect to whether the circumstances of an individual employee’s death can be evidence of the existence of a hazard, the majority noted that the employer here did not have actual or constructive knowledge of the employee’s pre-existing conditions that would have made the new temporary employee susceptible to illness. OSHRC found that given “the constraints that the [Americans with Disabilities Act] and the [Age Discrimination in Employment Act] impose” on employers’ hiring inquiries, the employer here could not have asked more to inquire about the new employee’s physical condition. (Op. at 13.) Moreover, OSHRC’s majority found that proof of the “realistic possibility” of an injury cannot be based on whether an employer had knowledge of the “hidden characteristics of an ‘eggshell employee.’” (Op. at 12, fn. 14.) Thus, OSHRC ruled that the Secretary had not proven that an excessive heat hazard was present.
Although not necessary to do so after having found no hazard at the worksite, the OSHRC majority also considered whether OSHA had demonstrated the feasibility and effectiveness of an abatement measure that would have materially reduced the incidence of a hazard (Op. 15-19; 34-48), which is another legal element for a valid general duty clause claim. The dissenting Commissioner Attwood found that the Secretary needed only to prove that the employer had not established an effective heat illness prevention program. The OSHRC majority disagreed and found that here, based on the Secretary’s litigation position, the employer had five alternative methods to secure abatement and because the employer proved that it had adequately implemented three of those measures, the Secretary could not prove that the employer had not abated any heat illness hazard. Thus, based on failure to prove two elements of a general duty clause violation—hazard existence and failure to abate—the OSHA citation was vacated.
Because there was no hazard present, and because the Secretary did not show that “a reasonably prudent employer” would have given training different than what Sturgill had provided, the failure to train violation, which was based on an OSHA regulation, also was vacated. (Op. at 19-22.) In doing so, OSHRC rejected the argument that the employer’s training must have been insufficient because the supervisor was not aware of the employee’s distress until he collapsed. (Op. at 22, fn. 22.)
Perhaps more important than this decision based on the Sturgill evidence are the OSHRC majority’s statements in footnotes and Chairman MacDougall’s separate concurrence regarding the general duty clause and its use by OSHA. Chairman MacDougall and Commissioner Sullivan, both Trump Administration appointees, questioned the use of the general duty clause as an enforcement mechanism. These two Commissioners footnoted that:
While practical considerations may have lead [sic] OSHA over the years, to rely on the general duty clause in lieu of setting standards, the provisions seems to have increasingly become more of a “gotcha” and “catch all” for the agency to utilize, which as a practical matter often leaves employers confused as to what is required of them.
(Op. at 8, fn. 9.) The majority noted with apparent approval that California, unlike federal OSHA, had adopted a heat illness prevention regulation in 2006. In her separate concurrence, Chairman MacDougall stated that the OSHA citation in the Sturgill case “construe[d] the general duty clause to cover work situations in ways that Congress never intended and to unreasonably stretch longstanding Commission precedent by applying the provision to broadly-defined risks inherent in the work being performed.” (Op. at 23, MacDougall concurring.) The Chairman then cited to two other of her recent decisions questioning the use of the clause, as well as an OSHRC decision from 1986. Other discussions in the majority’s footnotes and concurrences, including comments on their colleague’s dissent, give an indication of the OSHRC’s future rulings on general duty clause violations, especially once Commissioner Attwood’s term expires in April 2019 and likely a third Trump-appointed Commissioner will join OSHRC.
In sum, the Sturgill case is a warning that over the next several years OSHA likely will find it more difficult to use a general duty clause violation as an enforcement tool given OSHRC’s strong message of disapproval for its use for anything other than as a “stopgap measure to protect employees until standards could be adopted.” (Op. at 8, fn. 9, citations omitted.) Employers who are issued a citation based on a general duty clause violation may find several bases for challenging such a citation based on a close study of OSHRC’s Sturgill decision.
BACT to the Future: Enviros Petition for Review on Natural Gas Power Plant Air Permit, Saying Batteries Are “BACT” Under the Clean Air Act
By Alexander J. Bandza
Last week, the Center for Biological Diversity and other environmental groups petitioned the Ninth Circuit for review of EPA Region 9’s decision in December 2018 to issue a final prevention of significant deterioration (PSD) permit for the Palmdale Energy Project (Project), a gas-fired plant being developed in the city of Palmdale, CA. These environmental groups had previously but unsuccessfully challenged the permit in front of EPA’s Environmental Appeals Board (EAB), arguing that a new control technology configuration—namely, replacing the combined-cycle turbines’ duct burners with battery storage—should be used to satisfy EPA Region 9’s “Best Available Control Technology” (BACT) requirements under the Clean Air Act (CAA). The EAB denied the environmental groups’ appeal in October 2018. However, as the EAB explicitly recognized, “energy storage technology is a rapidly growing development in the electrical power supply sector,” and therefore the totality of the environmental groups’ efforts may spur additional consideration of battery storage as an option for facilities to meet their obligations under the CAA.
By way of overview, an entity desiring to construct a “major emitting facility” in a CAA-defined “attainment” or “unclassifiable” area must obtain preconstruction approval, in the form of a PSD permit, to build such a facility. CAA § 165. An applicant for a PSD permit must show that its proposal will achieve emissions limits established by BACT for pollutants emitted from its facility in amounts greater than applicable levels of significance. A BACT analysis is a site-specific, pollutant-specific determination that results in the selection of emissions limits representing application of air pollution control technologies or methods appropriate for the facility in question.
In October 2015, Palmdale filed an application with EPA Region 9 for a PSD permit to construct and operate the Project, a new major stationary source, on fifty acres of land in the City of Palmdale, California. The facility consists of two natural gas-fired combustion turbine generators, each of which is equipped with a natural gas-fired duct burner. Each of the two combustion turbine/duct burner combinations vents heat energy to its own dedicated heat recovery steam generator (HRSG), and steam from both HRSGs is routed to a single steam turbine generator. The duct burners boost the total heat input to the HRSGs, which increases steam output from the HRSGs and concomitantly the amount of electricity the steam generator, and thus the entire facility, produces.
In August 2017, EPA Region 9 issued and invited public comment on a draft PSD permit for the construction and operation of, including the regulation of emissions from, the proposed facility. The environmental groups identified a new control technology configuration—replacing the combined-cycle turbines’ duct burners with battery storage—that neither the Project applicant nor EPA Region 9 had identified as a potential control technology in the original BACT analysis. In response to the comments, EPA Region 9 determined that using battery storage to replace duct burners could be rejected as technically infeasible, ineffective, and on the basis of energy, environmental, and economic impacts. As to the first basis for rejection, EPA Region 9 analyzed the largest battery configuration that the environmental groups had identified in their comments—a Tesla 100 MW lithium-ion battery storage facility for an Australian wind farm. EPA Region 9 concluded that the duct burners could meet the hours required under the longer peak demand periods, whereas the battery configuration could not. Thus, EPA Region 9 rejected battery storage could be BACT.
The EAB affirmed, concluding that the environmental groups failed meet their burden of establishing that the Region’s analysis was clearly erroneous or otherwise warrants review. However, the EAB provided hope for future battery-storage efforts (emphasis added): “The Board observes that its decision is based on the record in this matter and its decision should not be taken to suggest that the Conservation Groups’ proposal can never be BACT for a particular facility. As the Board noted above, BACT is an emission limit that is based on a ‘case-by-case’ analysis, and the Region recognizes that ‘[e]nergy storage technology is a rapidly growing development in the electrical power supply sector[.]’ Thus, what may not be BACT for purposes of this permit application may be BACT for a future permit application.” Because the environmental groups’ challenge focuses on EPA Region 9’s approval of this air permit, it is anticipated that many of the same arguments and discussion will occur at the Ninth Circuit.
OSHA Rescinds Electronic Submission of Injury/Illness Logs and Incident Reports and Raises Penalties
By Gabrielle Sigel
On January 25, 2019, the U.S. Occupational Safety and Health Administration (OSHA) issued a Final Rule eliminating the requirement that certain employers electronically submit to OSHA information from their annual OSHA 300 log of workplace injuries and illnesses and their OSHA 301 incident reports, which are required to be created after each logged injury and illness. OSHA also announced that, pursuant to annual escalating requirements, penalties for OSHA violations in 2019 would increase to a maximum of $132,598 per willful or repeat violation and a maximum of $13,260 for all other types of violations.
Pursuant to a regulation issued in the final year of the Obama Administration, employers of establishments with 250 or more employees were to be required to submit information from their 300 logs and 301 reports annually to OSHA through an electronic portal. However, the portal was never established during the Obama or Trump Administrations, and the submission obligation was repeatedly suspended until, through the Final Rule, the electronic submission requirement was rescinded entirely.
OSHA described the Final Rule rescinding the submission requirement as primarily driven to “protect worker privacy,” because the OSHA 300 logs and 301 reports contain identifying information which “might be publicly disclosed” under Freedom of Information Act (FOIA) requests or otherwise. In the Final Rule’s preamble, OSHA stressed that its position is that data electronically submitted to OSHA regarding injuries and illnesses are exempt from FOIA public disclosure, both to protect OSHA’s enforcement efforts and to protect employees’ privacy. OSHA stated, however, that despite its position, it is concerned that “it still could be required by a court to release the data,” if it had not rescinded the broader submission requirements. OSHA also expressed concern that, if information from the 300 logs and 301 reports had been electronically collected pursuant to the regulation as issued in 2016, there were increased risks of cyber-security issues involved in protecting sensitive information. OSHA also stated that by rescinding the electronic submission requirement, OSHA can “focus its resources on initiatives that its past experience has shown to be useful … rather than on collecting and processing information from Forms 300 and 301 with uncertain value for OSHA enforcement and compliance assistance.”
Employers of establishments with 250 or more employees, or with 20-249 employees in designated high-hazard industries, remain obligated to annually, electronically submit information from OSHA Form 300A, which summarizes information from the annual OSHA 300 log and 301 reports. The OSHA Summary Form 300A for 2018 injuries and illnesses must be physically posted at each establishment by February 1, 2019, and submitted electronically to OSHA by March 2, 2019. The Form 300A electronic submission information also has been amended to require employers to include their Employer Identification Number (EIN). The requirement to electronically submit the 300A Summary and EIN applies nationwide, including to employers in the 28 State Plan States.
The January 25, 2019 Final Rule does not change the obligation of employers in most industries (unless specifically exempted) to maintain OSHA 300 logs and 301 reports at their establishments, for inspection by OSHA, employees, and their representatives. In addition, all employers continue to be required to report to OSHA, within prescribed time periods, when an employee is killed on the job or suffers a work-related hospitalization, amputation, or loss of an eye. State requirements regarding injury reporting may be more stringent than those imposed by federal OSHA.
What's in Your Baby Powder: NY Proposes Stringent New Disclosure Requirements on Cleaning and Personal Care Products
Exploring the E-Suite: Vol. 1, No. I
By Alexander M. Smith
Last week, New York Governor Andrew Cuomo announced the Consumer Right to Know Act (“Act”) as part of his proposed executive budget. The Act would authorize the New York Department of Environmental Conservation, along with the New York Department of Health and the New York Department of State, to promulgate regulations requiring product manufacturers to disclose the presence of potentially hazardous substances on their product labeling. Among other things, the Act would require these agencies to assess the feasibility of on-package labeling; develop regulations establishing a labeling requirement for designated products; develop a list of more than 1,000 substances that must be labeled; and identify the types of consumer products that will be subject to these new labeling requirements. The Act would also extend the Department of Environmental Conservation’s disclosure requirements for household cleaning products to encompass all cleaning products sold in New York, and it would empower the Department of Health to require similar disclosures for personal care products like shampoo, deodorant, or baby powder. Needless to say, these disclosure requirements would be among the most stringent—if not the most stringent—in the United States.
Governor Cuomo’s announcement is available here. We will keep our readers updated on the progress of Governor Cuomo’s proposal.
Exploring the E-Suite with Sharon Neal, Assistant General Counsel-EHS Counsel,
Exelon BSC, Law Department
How did you get involved in environmental law?
My interest in the environment began when I was young, around 10‑12 years old. I recall hearing my parents talk of their concerns about the environment and that triggered my curiosity. In college, I began by focusing on environmental science. In my sophomore year, a single paragraph in an environmental studies text discussed environmental law as an up-and-coming field for those with an interest in protecting the environment and shaping policy. From that moment, I decided to become an environmental lawyer. I graduated from Loyola University Chicago School of Law in 1988. I became a lawyer for the Illinois EPA in 1990, and I have been practicing environmental law ever since.
What do you enjoy most about your work in environmental law?
I have never stopped finding my work in this field interesting and meaningful. No two days mirror one another. There is always something new to learn and do in light of the vast, ever changing nature of the environmental field. Even after more than 20 years with Exelon, my knowledge of the Company’s broad range of operations continues to grow. I have also so enjoyed and appreciated the many talented, intelligent and committed people with whom I have worked over my entire career, who have a wide range of expertise, such as in environmental science, investigation, remediation, nuclear operations, utility operations, regulatory and governmental affairs, and law. They have truly enriched my practice and life.
What do you find to be the most challenging aspect of environmental law?
As a field, environmental law is especially challenging in light of the seemingly endless and changing laws, regulations, and other requirements, at the federal, state and local levels, with separate requirements for air, land, and water. It is challenging to stay current and to understand the legal implications for a large company that has many different types of complex operations. As with all fast-paced work, deadlines and competition for time are always a challenge. Also, unique to environmental law, is the deep intersection of science, law, and policy. The longer I have practiced, the more I have come to understand that you cannot possibly be an expert in all aspects of environmental law; there just too much to know and to know well. However, I do feel that what makes this field challenging also makes it continually interesting.
What or who helped you succeed as an environmental lawyer?
I have had the privilege of working with so many exceptionally bright and experienced environmental specialists, consultants, attorneys (in-house and outside counsel) since my start in environmental law, as well as great, supportive managers and company leaders, here at Exelon, who prioritize environmental compliance and stewardship. That has made all the difference. Much of what I do is as part of a team made up of persons with diverse expertise. We work together and rely on each other to succeed.
What do you think are the emerging issues in the field of environmental law?
Climate change will be at the heart of much of environmental law and policy going forward. There will be great emphasis on efforts to limit the operations that impact and create climate change, along with more and continuing efforts to reduce those impacts. There also will be a focus on responding and adapting to the effects that we already are seeing and that we will increasingly see in the future. We cannot overstate the significance of climate change in environmental issues going forward.
Describe those projects as an environmental lawyer of which you are the proudest.
Looking at my career as a whole, what stands out initially is the work I did when I was with the Illinois EPA. That was my first environmental position, so my learning curve was steep. Yet, within those first couple of years, I was able to negotiate and write state laws and regulations. I appreciate that I had the opportunity to do such important work so early in my career.
I have worked on so many interesting matters at Exelon. The focus of my work has changed many times over the years, depending on regulatory and operational/business developments. Some of the most fascinating work has been supporting Exelon Nuclear, including on Clean Water Act issues. I have spent much time at our nuclear stations, including at the Quad Cities Generating Stations, which, among other things, operates a successful fish hatchery that feeds into the Mississippi River. I also had the opportunity to attend a U.S. Supreme Court argument concerning federal regulations under the Clean Water Act, which affected Exelon, among other regulated entities. I have supported Exelon on many interesting projects over the years focused on evaluating, preventing and mitigating environmental impacts. I have especially enjoyed learning about and supporting Exelon’s many environmental stewardship projects.
Which community service or pro bono matters have been the most meaningful to you and why?
Exelon has an extensive pro bono and volunteer network, which provides opportunities for employees to participate in numerous activities that benefit a wide range of organizations and individuals in the communities that Exelon serves. At our annual Exelon Law Department All Hands clinics, attorneys and support staff work together to help many persons in single day’s event. At a recent clinic, we assisted seniors with planning and preparing important end of life documents. Last year’s clinic focused on providing support for those seeking immigration relief. Exelon’s Law Department holds such clinics annually in each of its four main cities, Chicago, Philadelphia, Baltimore and Washington D.C.
In the past year, I have also participated in some especially rewarding events and projects focused on introducing children and young adults to the field of law. A few of these events have supported “Just the Beginning”, a pipeline organization that motivates young people in economically challenged communities to become part of the legal profession and future leaders. I have also worked with young students in the “Lawyers in the Classroom” program, sponsored by the Constitutional Rights Foundation Chicago. It is a pleasure to teach and talk with the students in these programs and encourage them to see the legal profession as meaningful and attainable.
Also, in the past year, at the recommendation of a friend and colleague within the Exelon/EHS legal group, I became a board member of Thresholds, one of the oldest and largest Illinois organizations supporting persons with mental illnesses and substance use disorders. Thresholds provides a wide range of support—from care to employment to housing—for thousands of people in the broader Chicagoland community. I have been deeply gratified by the support I have received from Exelon and other friends, such as Jenner & Block, for my work on behalf of Thresholds.
What advice would you give a young person today who is considering starting out in your field?
I am confident that environmental law, and the field of environmental studies, in general, will continue to be important, fascinating work. If you have the opportunity to work for the government, especially early in your career, take that opportunity. Government service is an incredible place to learn, not only substantive environmental law, but many aspects of how policy comes to be law, how regulations are drafted and laws are enacted, interagency relationships, and the needs and role of the regulated community. I am grateful to have had that opportunity at the start of my career.
Ms. Neal was interviewed by Gabrielle Sigel, Co-Chair, Environmental and Workplace Health and Safety Law Practice, Jenner & Block
How Low Can You Go—States Continue to Lower Regulatory Bar on PFAS in Drinking Water
By Steven M. Siros
In 2016, U.S. EPA established an advisory level of 70 parts per trillion (PPT) for combined perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS)-- two of the more commonly found polyfluoroalkyl substances (PFAS). However, the Agency for Toxic Substances and Disease Registry (ATSDR) recently suggested that these advisory levels may not be stringent enough, releasing draft risk values earlier in 2018 that are significantly more conservative than the values relied upon by U.S. EPA in 2016. The ATSDR draft report identifies a minimal risk level for PFOA that equates to approximately 11 ppt and approximately seven ppt for PFOS.
The ATSDR draft report, the issuance of which the White House had sought to delay, has been subject to criticism by both sides of the spectrum, with some questioning the science behind the conclusions reached in the report, while others claim that the draft report doesn’t go far enough. The public comment period on the draft report closed on August 20, 2018 and the report has yet to be finalized.
However, in lieu of waiting for the report to be finalized and/or for U.S. EPA to take further action to revise its current health advisory level, several states have elected to move forward to establish their own regulatory limits for these chemicals. New Jersey and Vermont had taken the lead in adopting more stringent regulatory standards, with New Jersey adopting a 14 ppt limit for PFOA and Vermont adopting a 20 ppt limit for combined PFAS in drinking water. However, these levels were established prior to the release of the draft ATSDR report and a number of other states have since jumped on the regulatory bandwagon. For example, New York’s Drinking Water Quality Council recently recommended that New York adopt a 10 ppt limit for PFOA and PFOS. Michigan, which had adopted U.S. EPA’s recommended advisory level of 70 ppt, also is in the process of developing more stringent standards for PFAS in drinking water.
ATSDR has yet to release a time-line for finalizing its draft toxicological profile for PFAS and although U.S. EPA has announced that it intends to evaluate the need for a maximum contaminant level (MCL) for PFOA and PFOS, that is several years away. In the interim, it appears likely that individual states will continue to adopt their own individual regulatory levels for these chemicals in drinking water which will continue to result in a patchwork regulatory framework across the United States.
New OSHA Enforcement Policy Under General Duty Clause for Worksite Exposure to Air Contaminants
By Gabrielle Sigel
OSHA’s Directorate of Enforcement Programs recently issued an enforcement memorandum to all OSHA Regional Administrators providing a new “Enforcement Policy for Respiratory Hazards Not Covered by OSHA Permissible Exposure Limits” (“Enforcement Policy”). OSHA’s 2003 policy on the same topic is now superseded and archived.
The Enforcement Policy explains how and when OSHA will cite an employer for respiratory hazards from an air contaminant under the OSH Act’s General Duty Clause (“GDC”). The GDC is the statutory requirement that an employer “furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm.” 29 U.S.C. § 654(a)(1). By regulation, OSHA has stated that “An employer who is in compliance with any standard in this part shall be deemed to be in compliance with the requirement of section 5(a)(1) of the Act, but only to the extent of the condition, practice, means, method, operation, or process covered by the standard.” 29 CFR 1910.5(f). There is an open question as to whether and when an employer is in violation of the law if either (a) OSHA has not set a regulatory exposure limit for a particular chemical; or (b) exposures are below OSHA’s regulatory Permissible Exposure Limit (“PEL”), but above another organization’s recommended occupational exposure limit (“OEL”) for the same chemical. An OEL can be issued by, for example, an industry group, U.S. EPA, the National Institute for Occupational Safety and Health, or the American Conference of Governmental Industrial Hygienists.
OSHA’s new Enforcement Policy states that a GDC violation for airborne chemical exposures cannot be alleged unless OSHA can meet the 4-element standard of proof imposed by the courts for any GDC violation:
The employer failed to keep the workplace free of a hazard to which employees of that employer were exposed;
The hazard was recognized;
The hazard was causing or was likely to cause death or serious physical harm; and,
There was a feasible and useful method to correct the hazard.
The Enforcement Policy provides that exceeding an OEL is not sufficient evidence on its own to support a GDC citation; all four of the above GDC proof elements must be met. However, even if all four elements cannot be proven, OSHA still can issue a Hazard Alert Letter (“HAL”) if exposures are above an OEL. The Enforcement Policy includes a sample HAL.
The Enforcement Policy also provides examples of the evidence that OSHA needs to prove a GDC violation for airborne exposures above an OEL. With respect to the first element—that employees were exposed—OSHA can rely on air sampling and other workplace-based evidence, including witness statements. However, in contrast to many OSHA requirements when there is a regulatory PEL, in GDC cases, OSHA will consider whether the exposed employee is wearing respiratory protection. Unlike the 2003 version of the policy, the 2018 Enforcement Policy specifically states that “if the exposed employees were wearing appropriate respiratory protection with no deficiencies in the respirator program, then the likelihood that OSHA could establish a respiratory hazard covered by the general duty clause would be low.” However, OSHA does not preclude a GDC citation if respirators are used; the Enforcement Policy provides the exception for a respirator program only if that program has “no deficiencies.”
With respect to element #2—hazard recognition—the Enforcement Policy states that this element is met if: (a) there is direct evidence of employer knowledge; or (b) if the employer should have known of the hazard. Direct evidence can include prior receipt of a HAL or information regarding the hazard in a Safety Data Sheet prepared by a chemical’s manufacturer. Indirect evidence can include an OEL issued by an industry association, professional organization, or a non-OSHA government agency. With respect to GDC proof elements #3 and #4, OSHA states it likely will be required to present expert testimony to prove its case. However, that expert can rely on published studies and need not necessarily conduct a new study of the dangers of the hazard at that particular worksite.
The Enforcement Policy does not expressly address whether OSHA will pursue GDC violations for chemicals for which OSHA has issued a PEL. As written, the new Policy does not prohibit a GDC citation in those circumstances. The Enforcement Policy states that it applies when an air contaminant “is not covered” by an OSHA PEL, and does not include language restricting the policy to “those cases where an OSHA PEL has not been issued,” as the old version of the policy had stated. (Emphases added.) In addition, the new Policy refers Regional Administrators to the Field Operations Manual (“FOM”) for further guidance in preparing a GDC citation. The current FOM expressly states that a GDC citation may be issued when there are exposures above an OEL but below an OSHA PEL. FOM (8/02/2016) § III.D.2, Example 4‑25.
Therefore, under the Enforcement Policy, OSHA may assert that even employers with worksite air contaminant exposures below an OSHA PEL, as well as those using chemicals that do not have an issued OSHA PEL, are subject to a GDC citation, if there are unprotected worksite exposures above a recognized OEL.
The Trump Administration Issues Proposed "Waters of the United States" Rule Under CWA
By Gabrielle Sigel
On December 11, 2018, the U.S. EPA and the U.S. Army Corps of Engineers jointly issued a proposed rule to define the basic jurisdictional reach of the federal Clean Water Act (“CWA”), which applies to protection of the “navigable waters” of the U.S. The proposed rule defines the term “waters of the United States,” which establishes the scope of waters subject to the CWA (“the Proposed WOTUS Rule”). The definition of WOTUS has been the subject of decades of litigation, including at the U.S. Supreme Court, see Rapanos v. U.S., 547 U.S. 715 (2006), itself a divided opinion. The Trump Administration’s WOTUS rule, when issued in final, would replace the definitional rule issued in June 2015 by the Obama Administration. 80 Fed. Reg. 37054. Obama’s 2015 rule itself was the subject of litigation; including after the Trump Administration attempted to delay application of that rule. See, e.g., Puget Soundkeeper Alliance v. Wheeler, No. C15-1342-JCC (W.D. Wash. Nov. 26, 2018). As of now, 28 States are not subject to the 2015 rule, but to the definition of WOTUS pursuant to rules issued in 1977 and the 1980s, as well as decisions of the Supreme Court and the agencies’ guidance and practices.
The Proposed WOTUS Rule, which the Trump Administration states is consistent with the Rapanos plurality opinion written by Justice Scalia, purports to provide “clarity, predictability, and consistency” and, by limiting the scope of the CWA’s jurisdiction, “gives states and cities more flexibility to determine how best to manage waters within their borders.” By setting forth “six clear categories of waters” that are considered WOTUS, the Proposed WOTUS Rule seeks to ensure that the CWA applies only to those waters “that are physically and meaningfully connected to traditional navigable waters.” The six categories are, in general:
Traditional Navigable Waters (“TNW”s) – large water bodies used in interstate or foreign commerce, e.g., the Mississippi River, and including territorial seas
Tributaries – rivers and streams that flow to TNWs, which flow more often than just when it rains, e.g. Rock Creek, a tributary to the Potomac River
Certain ditches – an “artificial channel used to convey water,” if they are TNWs (e.g. the Erie Canal), are subject to tides, or are constructed in a tributary or in an adjacent wetlands
Certain lakes and ponds – TNWs; water bodies that contribute by perennial or intermittent flow downstream to TNWs; or are flooded by another WOTUS
Impoundments – impoundments of otherwise defined WOTUS
Adjacent wetlands – wetlands that physically touch other WOTUS; wetlands with a surface water connection in a typical year from inundation or perennial or intermittent flow; wetlands that are near a WOTUS but not physically touching due to a physical barrier if they are flooded or otherwise reconnected over the surface of the physical barrier
See the exact language of the six categories in the Proposed WOTUS Rule here.
The Proposed WOTUS Rule also specifies waters that would not be considered WOTUS, including features that contain water only in response to rain; groundwater; most farm and roadside ditches; and stormwater control features.
The Administration states that the new rule would eliminate the “time-consuming and uncertain process of determining whether a ‘significant nexus’ exists between a water and a downstream [TNW],” which has occurred since Justice Kennedy’s Rapanos opinion using the “significant nexus” language. The Administration also notes that the new rule, when final, would narrow the scope of WOTUS by eliminating some “ephemeral” streams and all such ditches. In addition, certain non-navigable lakes and ponds and other wetlands would no longer be regulated under the CWA. Perhaps the most dramatic change would be in the scope of wetlands which, if physically separated, would require a direct hydrologic surface connection to an otherwise recognized jurisdictional waters to be included within CWA jurisdiction.
Any new WOTUS rule, like its predecessors, will be subject to extensive litigation and further interpretation. The Administrator’s focus on surface bodies is likely to be a prime basis for substantively contesting the rule.
The Proposed WOTUS Rule is subject to written public comment, during a 60-day period after the Proposed Rule is formally published in the Federal Register. Comments can be submitted electronically at Docket ID No. EPA-HQ-ow-2018-0149.
Matthew Lawson to Present at the Chicago Bar Association on the Environmental Impacts of Blockchain
By Allison A. Torrence
On Thursday, November 29th, Jenner & Block Associate Matthew Lawson will be giving a CLE presentation on the “Environmental Impact of Blockchain” at the Chicago Bar Association’s Young Lawyers Environmental Law Committee Meeting. Matthew Lawson’s presentation will discuss both the negative environmental impacts caused by the growth in popularity of cryptocurrency mining, and the potential positive impacts on the environment from emerging and future applications of the Blockchain technology.
The presentation is on November 29, 2018, from 12:15 PM - 1:30 PM at the Chicago Bar Association, 321 S. Plymouth Ct. Chicago, IL 60604.
For more information on the event click here.
ATSDR and U.S. EPA--Conflicting Guidance Regarding Emerging Contaminant Regulatory Standards?
By Steven M. Siros
The director of the Agency for Toxic Substances and Disease Registry (ATSDR), Peter Breysse, continues to defend his agency's minimal risk levels (MRLs) for perfluorinated chemicals that were released in June 2018 as part of a draft toxicological profile. In response to questions posed at a recent Senate hearing, Breysse noted that ATSDR’s draft MRLs roughly corresponded to drinking water levels of 14 parts per trillion (ppt) for perfluorooctane sulfonate (PFOS) and 21 ppt for perfluorooctanoic acid (PFOA). Where these levels are exceeded, ATSDR has recommended that residents take steps to lower their exposures and contact state and local authorities. Breysse also recommended that residents consult with physicians and noted that ATSDR has information on its website for physicians to consult regarding exposure risks for these chemicals.
The drinking water levels referenced in the ATSDR toxicological profile (14 ppt for PFOS and 21 ppt for PFOA) correspond generally with regulatory standards implemented in several states, including New Jersey and Vermont, both of which have the lowest regulatory levels for these compounds in the United States. However, the ATSDR MRLs are much stricter than U. S. EPA’s drinking water advisory level of 70 ppt. In addition, many news outlets reported that U.S. EPA had sought to delay ATSDR’s issuance of its June 2018 toxicological profile. Perhaps coincidentally, at about the same time as ATSDR issued its draft report, U.S. EPA announced plans to begin to evaluate the need for a maximum contaminant level (MCL) for PFOA and PFOS.
Although ATSDR and U.S. EPA continue to work cooperatively (at least on paper) to address PFOA and PFOS at contaminated properties throughout the United States, it remains to be seen how well these agencies will cooperate in setting an MCL for these contaminants. The agencies' "cooperative" relationship may face choppy waters, especially in light of ATSDR's continued defense of its MRLs and U.S. EPA's skeptical view regarding same.
In Midterm Elections, Colorado Voters Reject High Profile Anti-Fracking Initiative
By Matthew G. Lawson
On Tuesday, November 6th, Colorado voters rejected a highly contested ballot initiative which would have set unprecedented limits on oil and gas drilling in the state. The measure, Proposition 112, would have prohibited drilling new oil or natural gas wells within 2,500 feet of certain occupied buildings—including homes, schools and hospitals; various water sources—including lakes, rivers and creeks; and other areas specifically designated as “vulnerable” by the state. In total, a report from the Colorado Oil & Gas Conservation Commission estimated that the measure would have prohibited new hydraulic fracturing operations on as much as 95% of the land in Colorado’s top oil and gas producing counties.
The proposition received a high degree of pre-election attention, with individuals from politician Bernie Sanders to actor Leonardo DiCaprio encouraging Colorado voters to support the initiative. While early polling indicated Proposition 112 was supported by the majority of Colorado voters, the initiative was ultimately defeated with 57% of the state’s voters opposing it in Tuesday’s elections. In what may have served as a fatal blow, Colorado’s governor-elect, Jared Polis, distanced himself from the ballot initiative in the days leading up to the election. The newly elected Democrat had campaigned as a pro-environment alternative to his Republican opponent, but categorized the ballot initiative as “economically damaging” to the state of Colorado.
At present, New York, Vermont, and Maryland are the only states to have established outright bans on fracking. None of those states, however, has oil and gas reserves approaching the production capacity of Colorado. The state’s oil and gas industry has grown dramatically in the last decade, with the state’s production of crude oil rising from 73,000 barrels per day in 2008 to 477,000 barrels per day in August 2018. As the state’s production of oil and gas continues to grow, it appears likely that legislative battles over fracking regulations will continue to unfold.
New Jersey Federal District Court Dismisses Enviro’s Constitutional Challenges to FERC’s Approval of PennEast’s $1B Gas Pipeline, Holding that the Court Doesn’t Have Jurisdiction under the Natural Gas Act
By: Alexander J. Bandza
On Monday, in N.J. Conservation Found. v. FERC (No. 17-11991), the U.S. District Court for the District of New Jersey dismissed the New Jersey Conservation Foundation’s (“NJCF”) suit against the Federal Energy Regulatory Commission (“FERC”) because the Court found that the courts of appeals, and not it, had subject matter jurisdiction under the Natural Gas Act (“NGA”). NJCF’s suit sought to declare that FERC’s practice of issuing certificates authorizing the construction of natural gas pipeline facilities violated the U.S. Constitution. While pled solely against FERC and its Commissioners, the case was predicated on FERC’s prior approval of PennEast Pipeline Company, LLC’s (“PennEast”) right to construct a $1B interstate natural gas pipeline. NJCF’s case centered on three purported Constitutional issues with FERC’s environmental analysis: (1) FERC’s approvals that delegate the power of eminent domain in the absence of adequate public use analyses violate the Takings Clause; (2) FERC’s approvals that grant eminent domain prior to receiving environmental impact findings from regulatory agencies violate the Fifth Amendment; and (3) FERC’s approvals that provide for subsequent state or federal authorizations, which then may require changes to the pipeline route or prevent construction, also violate the Takings Clause. The Court granted FERC’s motion to dismiss, holding that the Court did not have subject matter jurisdiction because the NGA vested the courts of appeals, not district courts, with exclusive jurisdiction to hear NJCF’s claims. NJCF is another voice in a growing chorus of district court and appellate cases that have rejected dissatisfied parties’ collateral attempts to re-litigate FERC’s decisions and decision-making processes, especially with regard to environmental issues, outside of FERC.
The FERC Proceedings
In September 2015, PennEast submitted an application under the NGA to construct and operate an interstate natural gas pipeline from Pennsylvania to New Jersey. Numerous parties, including NJCF, intervened in that FERC proceeding and submitted comments to FERC. FERC’s Office of Energy Projects (“Office”) initiated an environmental review process under the National Environmental Policy Act to study the pipeline’s potential environmental impacts. The Office concluded that the pipeline would result in some adverse effects, but they would be reduced to “less than significant levels” with certain mitigation measures. The Office recommended that FERC’s final authorization, if any, should include these mitigation measures.
On January 19, 2018, FERC issued its Certificate Order of “public convenience and necessity” adopting the Office’s findings. FERC then granted a Certificate to PennEast, subject to compliance with environmental and operating conditions. Numerous parties, including NJCF, filed requests for rehearing and moved to stay the Certificate Order. FERC ultimately issued a final order denying rehearing. NJCF and others sought review of FERC’s PennEast orders in the D.C. Circuit in addition to instant matter, which contained Constitutional claims and was filed in the New Jersey District Court.
The New Jersey District Court’s Opinion
FERC moved to dismiss NJCF’s complaint for lack of subject matter jurisdiction, arguing that the New Jersey District Court lacked jurisdiction to hear NJCF’s claims because the NGA vests the courts of appeals with exclusive jurisdiction to hear matters relating to a pipeline certificate proceeding. The Court agreed and dismissed NJCF’s complaint, holding that the “weight of the authorities” is that the NGA explicitly precluded the Court’s review of NJCF’s Constitutional claims.
According to the Court, the NGA confers on FERC “exclusive jurisdiction” over the “transportation and sale of natural gas in interstate commerce.” Op. at 2. Another section of the NGA provides that once a party requests rehearing of a FERC order, a party aggrieved by that particular order may seek judicial review in a court of appeals. Id. at 3. NJCF argued that the NGA’s statutory language limiting the avenues of review did not apply here because its case instead challenged “FERC’s general pattern and practice of granting unconstitutional certificates.” Indeed, the Court recognized that NJCF “painstakingly characterize[d] its claims as constitutional in nature . . . — whether a conditional certificate, issued by FERC, that is not sufficient to authorize pipeline construction may constitutionally permit a private company to condemn land for a pipeline that may never be built.”
Despite NJCF’s artful pleading, the Court surveyed the substantial number of decisions holding that because the NGA’s exclusive jurisdiction provision is so broad in scope, the NGA is the “exclusive remedy for matters relating to the construction of interstate natural gas pipelines.” Id. at 7-18. The Court had no shortage of colorful language from the collection of “well-settled” authorities in support of its holding: Third and Fourth Circuits—“there is no area of review, whether relating to final or preliminary orders, available in the district court”; Sixth Circuit—“exclusive means exclusive”; Tenth Circuit—it “would be hard pressed to formulate a [statutory framework] with a more expansive scope”; and First Circuit (although under the Federal Power Act’s similar provision)—challenges brought in the district court outside that scheme are “impermissible collateral attacks.” As a result, according to the Court, NJCF “cannot escape the NGA’s statutory scheme of review by circumventing [its] plain language.”
The Court’s opinion is available here.
The United States’ Largest Wholesale Energy Provider Launches Blockchain-Based Pilot for Renewable Energy Markets
By Matthew G. Lawson
On April 18, 2018, the Corporate Environmental Lawyer published a blog entry discussing the growing use of Blockchain technology by startup companies seeking to connect populations without access to traditional electricity markets to electricity produced by distributed renewable energy systems. As discussed in that blog entry, proponents of Blockchain technology have asserted the platform’s built-in efficiencies would allow it to compete with traditional, utility-owned electrical grids, with one company going as far as setting up a “micro-grid” in Brooklyn, New York. It appears that the marriage between Blockchain and the electricity grid may be moving forward at an accelerated pace as the technology is now being examined and piloted by major utility operators.
PJM Interconnection (“PJM”), the United States’ largest power grid operator and market administrator serving over 65 million people from Chicago to Washington D.C., has announced its intention to test a Blockchain system that will allow clean-energy buyers and sellers to trade the renewable energy credits that wind and solar farms produce as they generate electricity. Working through its subsidiary—PJM Environmental Information Services—PJM has announced a partnership with Energy Web Foundation, a nonprofit entity with experience developing Blockchain platforms for smaller energy markets in Europe and Asia. The partnership hopes to rollout a pilot for the program by the end of the first quarter of 2018. “This collaboration between EWF and PJM-EIS is a major milestone for the adoption of advanced digital technologies in the energy sector,” said Hervé Touati, CEO of Energy Web Foundation. “We are excited to partner with a leader such as PJM-EIS.”
Blockchain, the technology that functions as a public ledger underpinning digital currency transactions, continues to be promoted as a key driver of growing renewable energy markets. At its core, the belief that Blockchain can spur renewable energy growth and disrupt current energy markets stems from the potential built-in efficiencies of the technology, which allow buyers and sellers of clean power to interact directly, without the need for a central coordinator. While the potential impact of Blockchain on future energy markets is still unknown, the successful use of the technology by PJM could represent a major milestone in the growth and development of the technology in the marketplace.
New Law Requires Widespread Testing for Unregulated Contaminants
By Steven M. Siros
On October 23, 2018, President Trump signed into law America’s Water Infrastructure Act of 2018 which, in addition to authorizing federal funding for water infrastructure projects, also requires drinking water systems serving more than 3,300 people to test for unregulated contaminants pursuant to U.S. EPA’s Unregulated Contaminants Monitoring Rule (UCMR). Prior to this new law, only drinking water systems that served more than 10,000 people were required to monitor for unregulated contaminants. Contaminants covered by the UCMR include PFOA, PFOS, 1,2,3-TCP, hexavalent chromium and 1,4-dioxane. This new testing requirement, which goes into effect in 2021, is expected to add more than 5,000 drinking water systems to the list of systems that are required to test for these unregulated contaminants.
The challenge that continues to be faced by drinking water systems across the country is what to do if these contaminants are in fact found in the drinking water supply. As their name would imply, U.S. EPA has yet to set drinking standards for these contaminants although many states and local entities continue to enact a patchwork of regulatory requirements often without regard to the technical feasibility of treating these chemicals and/or the health risks actually posed by these chemicals. Unfortunately, until such time as U.S. EPA takes action to enact a federal standard, the regulated community will continue to be subject to this regulatory quagmire and now, with the new testing requirements, more drinking water systems will be forced to struggle with this issue without any clear regulatory guidance.