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Corporate Environmental Lawyer Blog

September 20, 2014 TSCA Reform Dead for 2014?

Siros_Steven_COLORBy Steven M. Siros


Recent actions by Senator Barbara Boxer may have sounded the death knell for TSCA reform in 2014.  On September 18, 2014, Senator Boxer unveiled what she characterized as revisions to a TSCA reform bill that had been being worked on by a bi-partisan committee within the Senate.  Senator Boxer's proposed revisions included the full text of what Senator David Vitter characterized as a  confidential draft version of the TSCA reform bill that was still being negotiated.  According to a statement released by Senator Vitter, "[w]e've worked for over a year on bipartisan negotiations in good faith.  In contrast, Senator Boxer has released our confidential proposal to the press.  That speaks for itself—it's not a good faith effort to reach consensus but a press stunt/temper tantrum" Senator Vitter indicated in a public statement.  As such, Senator Vitter has indicated that he will now go back to supporting Senate Bill 1009 as originally introduced in April 2013.

Senator Boxer's proposed revisions would eliminate any preemptive effect of TSCA on state and/or local regulations, resulting in a continuing patchwork of inconsistent state regulations.  Senator Boxer's proposed revisions would also change the "unreasonable risk or harm to human health or the environment" trigger to state that a chemical must "not pose harm to human health or the environment." 

Not surprisingly, Senator Boxer's proposed revisions have been widely applauded by environmental advocacy groups and strongly criticized by industry and the American Chemistry Council.  In any event, both sides of the issue will likely conceed that TSCA reform is dead until after the November 2014 elections.

CATEGORIES: Cercla, Climate Change, FIFRA, RCRA, Sustainability, Toxic Tort, TSCA

September 16, 2014 EPA May Garnish Wage Without Court Approval

Grayson_Lynn_COLORBy E. Lynn Grayson


EPA recently announced it plans to take final action later this year to authorize collection of non-tax debts by garnishing wages which may occur without a court order. Public comments submitted to date on EPA's proposed action express concern that the Agency may be exceeding its authority and that such actions may deprive individuals of their due process rights.

The EPA has claimed this new authority by citing the Debt Collection Improvement Act of 1996, which gives all federal agencies the power to conduct administrative wage garnishment, provided that the agency allows for hearings at which debtors can challenge the amount or the terms of a repayment schedule. Administrative Wage Garnishment (AWG) would apply only after EPA attempts to collect delinquent debts and after Treasury attempts to collect delinquent debts through other means. The agency would provide notice "prior to any action," giving the debtor the opportunity to "review, contest or enter into a repayment agreement."

EPA's proposal has been actively opposed by a number of watch dog and industry organizations. In addition, members of the House and Senate have argued that the proposed action is an improper expansion of EPA authority and many note it could hurt public impressions of EPA.

EPA's response has been that the Agency is proposing to do what 30 other federal agencies have done and what Congress directly empowered all agencies to do: collect debts owed to the federal government in a responsible and fair way.

EPA's proposed rule to amend its claims collection standards to include AWG can be viewed at 79 Fed. Reg. 37,704.

The amount EPA has collected in fines has increased since President Obama took office with $252M received in 2012, up from $96M in 2009. As Dan Goldbeck of the American Action Forum appropriately noted ". . . the order is certainly controversial and is a strong reminder that even a few pages of the Federal Register can pack serious administrative consequences."

CATEGORIES: Air, Cercla, Hazmat, RCRA, TSCA, Water

September 5, 2014 Sierra Club Ordered to Pay $6.4M in Attorneys Fees For Filing Frivolous CAA Lawsuit

Siros_Steven_COLORBy Steven M. Siros


On September 2, 2014, a United States District Court for the Western District of Texas ordered that the Sierra Club reimburse Energy Future Holdings Corporation and Luminant Generation Company $6.4 million in attorneys fees for filing what the court described as a "frivolous" Clean Air Act (CAA) lawsuit.  See Sierra Club v. Energy Future Holdings Corporation (W.D. Tex. Aug. 29, 2014).  In its complaint, the Sierra Club alleged that the defendants' coal-fired power plant was in violation of the CAA's particulate and opacity limits and sought $330 million in civil penalties and $140 million in pollution control upgrades.  The court granted partial summary judgment in favor of defendants, determining that there were no particulate emission violations at the power plant. Then, after a three day bench trial, the court concluded that there also were no opacity violations at the power plant.  In its memorandum opinion, the court determined that an award of costs of litigation, including attorneys' fees, was warranted pursuant to 42 U.S.C. §7604(d). 

42 U.S.C. § 7604(d) provides that a court, in issuing any final order under the citizen suit provisions of the CAA, may award litigation costs if it determines such an award to be appropriate.  Here, the District Court relied upon the United States Supreme Court's decision in Christianburg Garment Co. v. EEOC, 434 U.S. 412, 422 (1978) to conclude that an award of litigation costs to prevailing defendants is appropriate where a plaintiff's claims were "frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became so."

In concluding that a fee award was appropriate, the District Court noted the following: 

Here, Defendants were successful against all of Plaintiff's claims. Plaintiff was unable to show a prima facie case of a [particulate matter] violation, and the claim was dismissed at the summary judgment stage of litigation. Plaintiff was aware that Big Brown's Title V permit exempted it from [particulate matter]  deviations during maintenance, startup, or shutdown activities prior to filing suit, which rendered the claim meritless. And at trial, Plaintiff failed to prove any causation or injury to its lone standing witness or any other individual. Moreover, the one standing witness in the case was not even placed on Plaintiff's witness list even with the awareness that proving causation and linking the opacity violations at issue to injuries was required in order to prevail. Additionally, despite Plaintiff's knowledge that EFH had no role in the ownership or operations of Big Brown, it persisted in keeping EFH as a Defendant in the lawsuit. Even prior to the filing of the lawsuit, the TCEQ, who are experts in this field, had previously documented through its investigation reports that there were no [particulate matter] or opacity violations of the CAA at Big Brown. Defendants informed Plaintiff that these reports cannot be undermined. But even with this knowledge at its disposal, Plaintiff admitted that they failed to analyze or investigate the TCEQ investigation reports and filed suit. Consequently, after immense discovery, expense, and use of judicial resources, this Court found no evidence supporting any deficiency in the TCEQ's investigation reports. The evidence at trial, however, did reveal that during approximately 98.5 percent of the time that Big Brown was under normal operations, the opacity was generally 10 percent or less—far below the 30 percent limit. Moreover, each and every one of the opacity events that triggered a TCEQ investigation report found that an affirmative defense pursuant to the Texas Administrative Code was satisfied.

As such, the court concluded that plaintiff's claims were frivolous, unreasonable and groundless and therefore awarded defendants the sum of $6,446,019 in attorneys' fees, expert witness fees and costs from the Sierra Club.  The Sierra Club has indicated that it intends to appeal this decision. 

CATEGORIES: Air, Cercla, Climate Change, Sustainability, Toxic Tort

August 28, 2014 EPA Proposes Hazardous Waste Delisting For John Deere

By E. Lynn Grayson

EPA recently proposed to exempt 600 tons of wastewater treatment sludge filter cake from regulation as a RCRA hazardous waste. 79 FR 49253 (August 20, 2014). EPA's action follows John Deere's filing of a delisting petition on January 28, 2014 seeking to exempt these F006/F019 wastes generated at the John Deere Des Moines Works in Ankeny, Iowa.

John Deere (through its consultant) petitioned EPA to exclude from the list of hazardous wastes contained in 40 CFR 261.31, F006/F019 Waste Water Treatment Sludge Filter Cake from dewatering sludge generated by the plant wastewater treatment facility. The filter cake is subject to two waste listings as it is the result of treating a mixture of wastewater from different manufacturing processes.

The petitioned waste does not meet the criteria for which F006 was listed (i.e., cadmium, hexavalent chromium, nickel, cyanide (complexed)) or for which F019 was listed (i.e., hexavalent chromium, cyanide (complexed)) and that there are no other factors which would cause the waste to be hazardous. Specifically, the petition request is for a standard exclusion for 600 tons per calendar year of filter cake.

If approved, these wastes would be conditionally excluded from RCRA hazardous waste regulations. Even if delisted, the sludge would be disposed of at a RCRA Subtitle D landfill permitted by Iowa Department of Natural Resources to manage industrial solid wastes.

EPA is accepting comments on this proposed action until September 19, 2014.

CATEGORIES: Cercla, Hazmat, RCRA, Toxic Tort, Water

July 17, 2014 Great Lakes Restoration Grants Available

By E. Lynn Grayson

EPA recently issued a Request for Applications soliciting proposals from states, municipalities, tribes, universities and nonprofit organizations for Great Lakes Restoration Initiative grants to fund new projects to restore and protect the Great Lakes. Up to $27.5 million will be available during the current funding cycle. Grants will be awarded on a competitive basis for projects in the Great Lakes basin. Applications are due August 25, 2014. 

"This round of Great Lakes Restoration Initiative funding will be used for projects that control invasive species, prevent the discharge of nutrients and sediment, and improve water quality in the Great Lakes," said EPA Great Lakes National Program Manager Susan Hedman. "The work funded by these grants will help to restore and protect waters that are essential to the health and jobs of millions of Americans."   

A webinar explaining the grant application process will be held at 10:00 a.m. Central time on Tuesday, July 29. The Request for Applications and information about applying for Great Lakes Restoration Initiative grants is available at   

For more information about the Great Lakes Restoration Initiative visit

CATEGORIES: Cercla, Climate Change, Sustainability, Water

July 11, 2014 Appellate Court Rejects Challenge To NPL Listing

By Steven M. Siros

A recent decision from the U.S. Court of Appeals for the D.C. Circuit rejected a challenge to U.S. EPA's decision to list a site on the National Priorities List ("NPL"), finding that although the petitioner had standing to challenge the NPL listing, it impermissibly sought to rely on information that was not contained in the administrative record and failed to demonstrate that U.S. EPA's decision to list the site was arbitrary and capricious. In CTS Corp. v. EPA, the petitioner, CTS Corporation, challenged U.S. EPA's decision to list a former manufacturing facility on the NPL. The site in question (which was the subject of an recent Supreme Court decision finding that CERCLA's Section 9658 did not preempt a state statute of repose (see CTS Corp. v. Waldburger)) was added to the NPL at least in part on the basis of groundwater contamination that had allegedly migrated from the site into an adjacent residential neighborhood. U.S. EPA conceded that but for the residential groundwater contamination, the site's Hazard Ranking System score would not have exceeded the 28.5 threshold required to list a site on the NPL. 

As part of its challenge to U.S. EPA's listing decision, CTS argued that U.S. EPA had failed to adequately investigate possible alternative sources of the residential groundwater contamination. The court rejected that argument, noting that the handful of challenges that CTS did timely raise concerning alternative sources amounted to "little more than methodological nit-picking". The court was more critical, however, of CTS's effort to present new evidence in the form of an expert report that purported to critique a prior U.S. EPA isotope analysis of the groundwater samples that were taken from the residential wells. The court rejected what the court characterized as CTS's attempt to "bypass the administrative record" noting that it was "black-letter administrative law that in an [APA] case, a reviewing court should have before it neither more nor less information than did the agency when it made its decision".  The court therefore denied CTS' petition challenge to the NPL listing.

CATEGORIES: Cercla, RCRA, Toxic Tort, Water

PEOPLE: Steven M. Siros

June 18, 2014 EPA Evaluates Fracking Chemicals

By Robert L. Graham

The EPA recently initiated a process that may result in the first federal regulation of chemicals used in fracking, a drilling technique that has significantly enhanced energy production and development in the United States.

In a response to a citizen petition under Section 21 of TSCA submitted by environmental groups in 2011 seeking the disclosure of the chemicals used in fracking, the EPA issued an advance notice of proposed rulemaking on May 9, 2014. Pursuant to that notice, the EPA announced that it will be considering rules requiring oilfield service companies and others to provide disclosure concerning the health and safety of the chemicals used in fracking. At the same time, the EPA indicated that it may stop short of issuing final rules, by instead developing incentives to induce voluntary disclosure.

Since fracking was first initiated in the United States, environmental groups have been demanding that EPA collect information on the fluids which are injected with water and sand in the fracking process. The mixture of those fluids with water and sand breaks apart underground rocks to release oil and natural gas. In particular, fracking activities include the injection of water, chemicals, proppant, and/or tracers (i) to prepare geologic formations for hydraulic fracturing, (ii) to complete a hydraulic fracturing stimulation stage, (iii) to evaluate the extent of resulting fractures, and (iv) to ensure the future ability to continue enhancement of production through stimulation by hydraulic fracturing. During each hydraulic fracturing stimulation stage, pressurized fluids containing carrier fluids such as water or gas and any combination of proppant and chemicals are injected into wells, to fracture portions of the formation surrounding a selected well section.

As part of its rulemaking, EPA is requesting comment on the information that should be obtained or disclosed and the mechanism for obtaining or disclosing information about chemicals and mixtures used in hydraulic fracturing. EPA is also seeking comment on best management practices for the generation, collection, reporting, and/or disclosure of public health and environmental information from or by companies that manufacture, process, or use chemical substances or mixtures in hydraulic fracturing activities—that is, practices or operations that can be implemented and verified in order to achieve protection of public health and the environment—and whether voluntary third-party certification and incentives for disclosure could be valuable tools for improving chemical safety. In addition, the EPA is seeking comment on ways to minimize reporting burdens and costs, avoid duplication of efforts, and maximize transparency and public understanding. Finally, EPA is soliciting comments on incentives and recognition programs that could be used to support the development and use of safer chemicals in hydraulic fracturing.

As authority for its rulemaking, EPA has invoked TSCA Section 8(d) (15 U.S.C. 2007 (d)), which authorizes EPA to require the submission of lists of health and safety studies conducted or initiated by or for, or known to or reasonably ascertainable by manufacturers, processors, and distributors of (and any person who proposes to manufacture, process, or distribute) any chemical substance or mixture. TSCA Section 8(d) also authorizes EPA to require the submission of copies of studies that are otherwise known by the person submitting the list. EPA has also invoked the Pollution Prevention Act (PPA) (42 U.S.C. 13101 et seq.), which makes pollution prevention the national policy of the United States. The PPA identifies an environmental management hierarchy in which pollution "should be prevented or reduced whenever feasible; pollution that cannot be prevented or recycled should be treated in an environmentally safe manner whenever feasible; and disposal or release into the environment should be employed only a last resort…" (42 U.S.C. 13103). Among other requirements, the PPA directs EPA to develop improved methods of coordinating, streamlining, and assuring public access to data collected under federal environmental statutes; to facilitate the adoption of source-reduction techniques by businesses; and to establish an annual awards program to recognize a company or companies that operate outstanding or innovative source reduction programs.

While the EPA has labeled its proposed rulemaking as a major first step in considering whether fracking should be a more transparent process, the oil and gas community is wary of any regulation which would undercut the growth and development of fracking. Instead, oil and gas producers have typically advocated for regulation on a state-by-state basis, which they believe will be more effective as well as more compatible with their business interests. At the same time, environmentalists have already criticized the EPA's proposed rulemaking as merely a "baby" step, because there is no guarantee that the EPA will issue rules mandating the disclosure of chemicals and mixtures used in fracking.

The controversy over disclosure will continue to grow. Fracking has already led to a natural gas boom in a number of states, including, in particular, North Dakota, Pennsylvania, Ohio, and Texas. Although drilling companies have been disclosing chemical information on an industry website (, critics contend that the website allows too many exemptions that keep ingredients secret and precludes ready aggregation of information concerning the specific chemicals used in fracking. Given the fracking boom, whether and to what extent the chemicals used in fracking are disclosed will undoubtedly remain a hot topic, both on the state and federal levels.

CATEGORIES: Cercla, Hazmat, RCRA, Toxic Tort, Water

PEOPLE: Robert L. Graham

June 17, 2014 North Carolina Seeks To Amend Statute Of Repose Following Waldburger Decision

By Steven M. Siros

Within hours of the Supreme Court's decision in CTS Corporation v. Waldburger finding that that CERCLA's "discovery rule" did not preempt North Carolina's 10-year statute of repose, the United States Department of Justice asked the Eleventh Circuit to dismiss plaintiffs' claims alleging personal injuries as a result of exposure to TCE-contaminated drinking water at the Camp Lejeune military base in North Carolina. Prompted in part by the speed in which the DOJ sought to dismiss these claims, the North Carolina legislature is now in the process of seeking to amend its statute of repose in order to allow plaintiffs to pursue personal injury claims related to exposure to hazardous substances unhindered by North Carolina's 10-year repose statute. This is certainly not unexpected and I would anticipate that in states that continue to have statutes of repose on the books, lawmakers will face increased pressure to rescind or amend these provisions to allow potentially injured parties the ability to pursue claims years (and perhaps decades) after the alleged exposure occurred.


PEOPLE: Steven M. Siros

June 9, 2014 U.S. Supreme Court Rules That CERCLA Does Not Preempt State Statutes Of Repose


By: Allison A. Torrence


The U.S. Supreme Court has clarified the preemptive power of CERCLA, holding that CERCLA does not preempt state statutes of repose, even though it does preempt certain state statutes of limitation. On June 9, 2014, the Supreme Court ruled in the case of CTS Corp. v. Waldburger, No. 13-339, reversing the Fourth Circuit Court of Appeals and upholding the application of the North Carolina statute of repose at issue. Justice Kennedy wrote the majority opinion with Justices Ginsburg and Breyer dissenting.

It is undisputed that CERCLA preempts statutes of limitations in certain circumstances. The issue decided by the Supreme Court was whether that preemption extended to statutes of repose as well. As explained by the Supreme Court, "a statute of limitations creates a time limit for suing in a civil case, based on the date when the claim accrued." Slip. op. at 5. In contrast, a statute of repose "puts an outer limit on the right to bring a civil action. That limit is measured not from the date on which the claim accrues but instead from the date of the last culpable act or omission of the defendant." Slip. op. at 6.

CERCLA preempts state statutes of limitation in cases brought under state law for personal injury or property damages caused by exposure to hazardous substances by providing a federally required commencement date (FRCD) for certain statutes of limitation. The FRCD is the date the plaintiff knew or reasonably should have known that the personal injury or property damages at issue were caused or contributed to by the hazardous substance concerned. 42 U.S.C. § 9658(b)(4). If the state statute of limitations provides a commencement date earlier than the FRCD, CERCLA preempts the state law and the state limitation period shall commence on the FRCD.

The Supreme Court noted that this section of CERCLA deals only with statutes of limitation and does not mention statutes of repose. In addition, and more significantly to the Court, a statute of reposes "is not related to the accrual of any cause of action." Slip. op. at 14. In contrast, the FRCD is specifically targeted at the accrual of a cause of action. Because the purpose and application of a statue of repose is distinct from a statute of limitations, the Supreme Court held that CERCLA does not preempt state statutes of repose.

The defendant in this case had sold its polluting operations in 1987, but the plaintiffs did not discover that their well water was contaminated until 2009, and then filed suit in 2011. The North Carolina statute of repose provides that "no cause of action shall accrue more than 10 years from the last act or omission of the defendant giving rise to the cause of action." N.C. Gen. Stat. Ann. § 1-52(16). More than 10 years had passed since the defendant's last culpable action because the defendant had sold the operations in 1987. Thus, under the Supreme Court's ruling, the North Carolina statute of repose bars the plaintiffs' claims because they were filed more than 10 years after the defendant sold the operations.

This ruling will be beneficial to defendants facing claims related to historical contamination caused by operations or actions many years ago, as was the case in CTS Corp. Now, even if the injuries caused by historical contamination remain latent and undiscovered for years, the entity responsible for that contamination may be able to rely on a state statute of repose to bar future claims related to the historical contamination.

The Supreme Court's decision is available here.


June 6, 2014 U.S. EPA Hits Pause On CERCLA Vapor Intrusion Regulations


By: Steven M. Siros


U.S. EPA has voluntarily withdrawn its proposed Hazard Ranking System ("HRS") rule that would have allowed regulators to list a site on the National Priorities List ("NPL") solely on the basis of the risks posed by vapor intrusion. The withdrawal occurred after the proposed rule had been sitting at the Office of Management & Budget ("OMB") for over two years without OMB taking any action on the proposed rule. A 2010 report from the Government Accountability Office estimated that as many as 37 sites might be eligible for NPL listing solely on the basis of vapor intrusion risks (although the report did not identify these 37 sites). Industry, however, was opposed to the draft rule, noting that many sites with vapor intrusion risks are already listed on the NPL due to other factors and that NPL listings are a poor means to address vapor intrusion sites which often require immediate action and are relatively straightforward to remediate (as opposed to the years of study and assessments that are typical for NPL sites). Notwithstanding its decision to withdraw its pending rule from OMB review, U.S. EPA indicated that it remains committed to submitting the proposed rule for consideration by OMB at a later date.


May 21, 2014 Now Online: IICLE Chapters on Environmental Law in Illinois Corporate and Real Estate Transactions

Bandza_Alexander_COLORBy: Alexander Bandza


As we previously reported, several Jenner & Block EHS lawyers authored chapters in the Illinois Institute for Continuing Legal Education's (IICLE) publication titled Environmental Law in Illinois Corporate and Real Estate Transactions 2014 Edition.  The electronic (PDF) versions of these chapters are now available online:

The entire publication is available from IICLE here.

CATEGORIES: Air, Cercla, Climate Change, FIFRA, Greenhouse Gas, Hazmat, OSHA, RCRA, Sustainability, Toxic Tort, TSCA, Water

April 23, 2014 Happy Earth Day - 2014

By: Robert L. Graham and E. Lynn Grayson

In 2010, Jenner & Block's Environmental and Workplace Health and Safety Law Practice launched its Corporate Environmental Lawyer blog. We hope that you have found our updates and insights on critical environmental, health & safety developments to be helpful and informative. Now, on the occasion of our 500th blog, and as Jenner & Block celebrates its 100th anniversary, we wanted to provide a brief overview of our practice, highlight some key themes that we intend to focus on in the Corporate Environmental Lawyer blog in 2014, and wish you a Happy Earth Day.

Jenner & Block's Environmental Health and Safety Law Practice was founded in 1978. As environmental, health, and safety ("EHS") law has evolved over the past three decades, so too has our practice. Our attorneys are recognized authorities on environmental, health, safety, transactional, and energy matters. We offer comprehensive solutions to complex EHS problems, drawing on our collective past experience as environmental prosecutors, in-house counsel, and environmental law teachers since the 1970s.

As evidenced by our 500 plus blog entries, we have now embraced social media because it allows us to provide timely information on EHS issues of concern to our clients. Our Twitter account (JennerBlockEHS), created in 2012, further enables us to communicate real-time information on breaking EHS issues important to U.S. business, in-house environmental counsel, and EHS professionals.

In 2013, our blog focused on several key issues, including water scarcity and climate change. We also implemented a weekly feature that provides an overview of current EHS cases pending before the United States Supreme Court. In addition, we focused on evolving regulatory issues concerning TSCA reform, green chemistry, and CERCLA and RCRA liability.

We would like to thank you for your past support and hope that you will continue to rely on the Corporate Environmental Lawyer blog for timely EHS news in 2014 and beyond. If you have any suggestions on how we might improve our blog or our overall EHS communications, please feel free to contact us.

In celebration of Earth Day, and on the occasion of Jenner & Block's 100th anniversary, we are also planting 100 trees this summer to commemorate improvements in environmental quality. For more details on the Firm's 100th anniversary, please visit

Robert L. Graham ( and E. Lynn Grayson (, Co-Chairs, Environmental, Workplace Health and Safety Practice Group

CATEGORIES: Air, Cercla, Climate Change, FIFRA, Greenhouse Gas, Hazmat, OSHA, RCRA, Sustainability, Toxic Tort, TSCA, Water

PEOPLE: Robert L. Byman

April 22, 2014 Environmental & Energy Cert. Petition Watch

Bandza_Alexander_COLORBy: Alexander J. Bandza


As part of the "Environmental & Energy Cert. Petition Watch" project, in the past two weeks, the following EHS-related petitions have been filed, denied, or granted. For a full list of EHS-related cert. petitions submitted from August 2013 through the present (as of Apr. 13, 2014), click here.


Missouri Gas Energy v. Kansas Division of Property Valuation, No. 13-1216

Lower Court: Kansas Supreme Court

Subject: Commerce Clause

Question(s) Presented: Whether a state may, consistent with the dormant Commerce Clause, impose an ad valorem tax on natural gas that is being transported through interstate commerce but temporarily stored in the state by a common carrier, even though the taxpayer has no control over where the gas is stored and no other connection with the state.


Huron Mountain Club v. United States Army Corps of Engineers, No. 13-920

Lower Court: 6th Cir.

Subject: Clean Water Act

Question(s) Presented: (1.) Whether a federal agency's failures to acknowledge its direct, and derivative, jurisdictional responsibilities are subject to judicial review and resolution. (2.) Whether a federal agency's fundamental failure to acknowledge its jurisdiction, is distinct from "enforcement" decisions the agency subsequently can make after acknowledging that jurisdiction.




April 16, 2014 Federal Railroad Administration to Issue Proposed Rule on Minimum Train Crew Size


By: E. Lynn Grayson


The U.S. Department of Transportation's Federal Railroad Administration (FRA) recently announced its intention to issue a proposed rule requiring two-person train crews on crude oil trains and establishing minimum crew size standards for most main line freight and passenger rail operations. The FRA also intends to advance a rulemaking on train securement and recommends a rulemaking on the movement of hazardous materials.

The announcement follows the deliberations of three Railroad Safety Advisory Committee (RSAC) Working Groups on Appropriate Train Crew Size, Securement, and Hazardous Materials Issues. All three Working Groups were created at DOT's request last summer in response to the Lac-Mégantic derailment. The emergency meeting was held to evaluate and consider wide-ranging proposals to further enhance railroad safety including the safe shipment of crude oil by rail. Two of the Working Groups produced recommendations that were adopted by the full RSAC for consideration in future rulemakings. In light of the working group's failure to reach consensus on crew size, the FRA took action today to move forward with a rulemaking.

While existing FRA regulations do not mandate minimum crew staffing requirements, current industry practice is to have two person crews for over-the-road operations. The notice of proposed rulemaking (NPRM) will most likely require a minimum of two person crews for most mainline train operations including those trains carrying crude oil. It is also expected to include appropriate exceptions.

FRA plans to issue an additional NPRM based on the consensus recommendations of the Securement Working Group and approved by the full RSAC that would prohibit certain unattended freight trains or standing freight cars on main track or sidings and require railroads to adopt and implement procedures to verify securement of trains and unattended equipment for emergency responders. It would also require locomotive cabs to be locked and reversers to be removed and secured. Railroads would also be required to obtain advance approval from FRA for locations or circumstances where unattended cars or equipment may be left.

The full RSAC also approved four recommendations of the Hazardous Materials Issues Working Group relating to identification, classification, operational control and handling of certain shipments. The four recommendations, directed to the Pipeline and Hazardous Materials Safety Administration (PHMSA), include amending or revising the definitions of "residue" and "key train," and clarifying its regulatory jurisdiction over the loading, unloading and storage of hazmat before and during transportation. PHMSA continues to advance a rulemaking addressing the integrity of DOT Specification 111 tanker cars and the safe shipment by rail of flammable materials such as crude oil.

On August 29, 2013, the first-ever emergency session of the RSAC was held in response to the July 6, 2013 derailment of an unattended Montreal, Maine and Atlantic Railway freight train containing crude oil in Lac-Mégantic, Quebec, Canada. Building upon Secretary Anthony Foxx's February Agreement with the Rail and Petroleum Industries, the FRA's Emergency Order 28 and Safety Advisory 2013-06, PHMSA's Operation Safe Delivery, Safety Alerts and a DOT Emergency Order, the three RSAC working groups reviewed existing regulations and standards to identify and mitigate the risks posed by such shipments and prevent future accidents.


CATEGORIES: Cercla, Hazmat, RCRA, Toxic Tort, Water