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.
Illinois Appellate Court Rules That Workers’ Compensation Exclusivity Not A Bar To Subsequent Personal Injury Claim
By Steven M. Siros
In a case of first impression, an Illinois Appellate Court recently allowed a plaintiff to pursue asbestos personal injury claims against his employer, finding that the plaintiff was not limited to seeking redress under Illinois' workers' compensation laws. In the matter of Folta v. Ferro Engineering, the plaintiff was allegedly exposed to asbestos while employed at a plant owned by defendant between 1966 and 1970. Forty-one years later, plaintiff was diagnosed with mesothelioma. By this time, plaintiff's workers' compensation claim was time-barred by the 25-year statute of repose for asbestos-related injuries under Illinois' Workers' Compensation Act and the three-year statute of repose for asbestos-related diseases under Illinois' Workers' Occupational Diseases Act. The trial court granted the employer's motion to dismiss, finding that plaintiff's claims were in fact time-barred.
On appeal, plaintiff argued that because his injuries were not otherwise compensable under the Workers' Compensation Act and/or Workers' Occupational Diseases Act, the exlusivity provisions of those statutes should not operate as a bar to his personal injury claims. The appellate court agreed, finding that since plaintiff was unable to recover under Illinois' regulatory scheme, there was no risk of double recovery and/or excessive litigation. The appellate court therefore reversed the trial court's dismissal of plaintiff's claim and remanded the case back to the trial court.
Interestingly, what appears to be missing from the appellate court's analysis is any discussion concerning the rationale behind Illinois workers' compensation regulatory scheme (to provide employers with some degree of certainty with respect to the nature and extent of an employee's compensation in exchange for the employee being assured of compensation while avoiding the cost, delay and uncertainty of litigation). Additionally, the court's decision would seem to implicitly incorporate a discovery rule into Illinois' statute of repose.
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 (http://www.fracfocus.org/), 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.
Now Online: IICLE Chapters on Environmental Law in Illinois Corporate and Real Estate Transactions
By: 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:
- Chapter 3, Environmental Considerations in Corporate and Real Estate Transactions, E. Lynn Grayson, Jenner & Block LLP, Chicago;
- Chapter 4, Lender Liability Under Environmental Laws for Real Estate and Corporate Transactions, Gabrielle Sigel and Alexander J. Bandza, Jenner & Block LLP, Chicago;
- Chapter 5, Illinois Environmental Forums, Steven M. Siros and Seth J. Schriftman, Jenner & Block LLP, Chicago; and
- Chapter 10, Treatment of Environmental Obligations in Bankruptcy, Christine L. Childers, First American Bank, Elk Grove Village, and Keri L. Holleb Hotaling, Jenner & Block, Chicago.
The entire publication is available from IICLE here.
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 www.jenner.com/about/history.
Robert L. Graham (email@example.com) and E. Lynn Grayson (firstname.lastname@example.org), Co-Chairs, Environmental, Workplace Health and Safety Practice Group
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.
IICLE Releases New Environmental Law Publication
By: E. Lynn Grayson
The Illinois Institute for Continuing Legal Education (IICLE) has released a new publication titled Environmental Law in Illinois Corporate and Real Estate Transactions 2014 Edition.
According to IICLE, this publication is a unique resource that balances Illinois business and real estate practice with environmental law issues. Whether you represent commercial landlords, manufacturers, real estate developers, government agencies, or private landowners, this handbook will prepare you to tackle any environmental issue. It also includes guidance on how to conduct an "all appropriate inquiries" investigation in a real estate transaction, the environmental due diligence process, practice in various environmental forums in Illinois, programs and redevelopment incentives to return brownfields to productive use, and how federal bankruptcy law intersects with environmental issues in real estate transaction.
The following chapters in this publication were authored by Jenner & Block EHS lawyers.
* * *
Chapter 3 – Environmental Considerations in Corporate and Real Estate Transactions
E. Lynn Grayson, Jenner & Block LLP, Chicago
Chapter 4 – Lender Liability Under Environmental Laws for Real Estate and Corporate Transactions
Gabrielle Sigel and Alexander J. Bandza, Jenner & Block LLP, Chicago
* * *
Chapter 5 – Illinois Environmental Forums
Steven M. Siros and Seth J. Schriftman, Jenner & Block LLP, Chicago
* * *
Chapter 10 – Treatment of Environmental Obligations in Bankruptcy
Christine L. Childers, First American Bank, Elk Grove Village, and Keri L. Holleb Hotaling, Jenner & Block, Chicago
The publication is available from IICLE at http://iicle.inreachce.com/.
Certain Pesticides Fail New U.S. EPA Screening Guide for Volatilization Risks
By: Steven M. Siros
On March 26, 2014, U.S. EPA released its draft "Human Health Bystander Screening Level Analysis: Volatilization Risks of Conventional Pesticides". This screening guide is intended to provide a mechanism for evaluating exposure risks as a result of the volatilization of conventional pesticide products. Earlier in the year, U.S. EPA released a similar draft guidance that proposed a mechanism to evaluate the potential risk of pesticide drift.
U.S. EPA's proposed screening guide for evaluating volatilization risks takes into consideration the chemical and physical properties of the pesticide to evaluate the rate at which a pesticide volatilizes from a treated site and then relies on the AERSCREEN model to calculate estimated pesticide concentrations in the air at different distances from the treated location.
In conjunction with the release of the draft screening guide, U.S. EPA also released the results of a screening analysis that U.S. EPA ran using this proposed methodology on 253 commonly used pesticides. Of these 253 pesticides, 68 pesticides failed. Per the draft guidance, if a pesticide fails the screening analysis, that is a trigger for U.S. EPA to further evaluate the volatilization risks of that particular pesticide. Commonly used pesticides that failed U.S. EPA's draft screening analysis included atrazine, chlorpyrifos, diazinon, and pyrethrin.
U.S. EPA's proposed screening analysis has already been the subject to criticism by industry groups that have gone on record as saying that the draft assessment is too strict, relies on inappropriate models. Environmental groups, on the other hand, believe the assessment to be too lax and incorrectly weights the effects of dispersion on the exposure assessment. The comment period on U.S. EPA's draft screening analysis guidance will expire on May 27, 2014.
Lawsuit Seeks To Compel U.S. EPA Disclosure Of Pesticide Inert Ingredients
By: Steven M. Siros
On March 5, 2014, several environmental groups filed a lawsuit against U.S. EPA seeking to compel the public disclosure of "inert" ingredients in pesticide products. Under the Federal Insecticide, Fungicide and Rodenticide Act ("FIFRA"), pesticide manufacturers are obligated to list "active" ingredients. However, "inert" ingredients are not currently subject to the same disclosure requirements as "active" pesticide ingredients. According to the lawsuit, U.S. EPA has authority under FIFRA to also require the disclosure of "inert" ingredients which can comprise a significant percentage of a pesticide product's formulation.
As set forth in the complaint, in August 2006, a coalition of public health and environmental organizations submitted a petition requesting that U.S. EPA require the disclosure of certain "inert" chemicals used in pesticide products. In December 2009, U.S. EPA initiated an advanced notice of proposed rulemaking that would have required this disclosure. However, U.S. EPA has taken no further action with respect to this advance notice. The lawsuit seeks to compel U.S. EPA to either complete its proposed rulemaking or otherwise take action with respect to the pending petition.
Please click here to see a copy of the complaint.
EPA 2013 Enforcement Results: Higher Penalties With Fewer Enforcement Proceedings
By: Steven M. Siros
U.S. EPA recently released its 2013 enforcement report, which highlights the $5.6B in fines, restitution and court-ordered environmental projects that U.S. EPA obtained in civil and criminal enforcement proceedings in 2013 (as compared to $200M in 2012). It should be noted, however, that the Deepwater Horizon events themselves accounted for $5B of the $5.6B collected by U.S. EPA in 2013. Two additional matters accounted for $450M of the remaining $600M collected by U.S. EPA.
U.S. EPA acknowledged that it pursued 20% fewer enforcement cases in 2013 although the magnitude of the Deepwater Horizon prosecution provides a partial explanation for this enforcement decrease. However, this enforcement decline is consistent with U.S. EPA's draft Strategic Plan for 2014-2018 which was the subject of an earlier blog post . As discussed in the earlier post, instead of focusing on the numeric volume of enforcement cases, U.S. EPA's strategic plan proposes to target larger and more complex environmental violations and violaters.
Please click here to go to U.S. EPA's 2013 enforcement results website.
EPA Signs Final E-Manifest Rule
By: E. Lynn Grayson
EPA signed a final rule authorizing the use of electronic manifests for hazardous waste transportation as an alternative to paper manifests traditionally relied upon. The final rule will authorize the use of electronic hazardous waste manifests that will become available when EPA establishes a new electronic hazardous waste manifest system (e-manifest). The modification will provide waste handlers with the option to complete, sign, transmit, and store manifest information electronically in the electronic system. States that currently receive and collect paper manifest copies will receive copies of manifest data electronically from the system.
On October 5, 2012, President Obama signed into law, the Hazardous Waste Electronic Manifest Establishment Act which authorizes the EPA to implement a national electronic manifest system. Commonly referred to as "e-manifest", this national system is envisioned to be implemented by the EPA in partnership with industry and states.
Milestones for EPA Actions:
- The Act requires that the e-Manifest Information Technology (IT) system must be up and running within three years after the Act is passed
- The EPA must issue regulation authorizing use of electronic manifests within one year after the Act is passed
- The EPA must establish a System Advisory Board within three years after the Act is passed in order to advise the EPA on system performance and user fees
- e-Manifest extends to all federally- and state-regulated wastes requiring manifests
- Allows that the use of electronic manifests is optional for users, and authorizes centralized collection of data from electronic and paper manifests
Fee and spending provisions:
- Authorizes the EPA to collect reasonable user fees for all system related costs including development and maintenance
The rule is intended to streamline the uniform manifest system making it more cost-effective and user friendly. A pre-publication version of the final rule is available on the EPA website via http://www.epa.gov/epawaste/hazard/transportation/manifest/e-man.htm.
EU Evaluates Banning Flame Retardants and Phthalates In Electronic And Electrical Goods
By: Steven M. Siros
In light of a recent study conducted on behalf of the European Commission (which is the executive body of the European Union (EU) responsible for proposing legislation), the Commission is expected to ban certain phthalates and flame retardants in electronic and electrical goods. More specifically, the Commission is expected to add a flame retardant (hexabromocyclododecane) and three phthalates (bis (2-ethylhexyl) phthalate (DEHP), butyl benzyl phthalate (BBP), and dibutyl phthalate (DBP)) to Annex II of the Restriction of Hazardous Substances Directive (RoHS). Under RoHS, Annex II chemicals are banned in electronic and electrical goods in excess of .1% weight.
The addition of these specific chemicals to the RoHS Annex II would most directly impact importers of electronic and electrical equipment into the EU as EU's REACH program has already banned the use of these chemicals in the EU after February 21, 2015 (unless specific use authorizations are obtained). As a general matter (subject to several exceptions), importers of electronic and electrical goods into the EU are not currently subject to REACH. However, compliance with RoHS is mandatory for all products produced and/or imported in the EU.
In reality, however, manufacturers of any product that contains phthalates would be well advised to take steps to ensure that the phthalate content in those products is below the .1% weight threshold. Numerous regulatory bodies have already banned phthalates in excess of the .1% weight threshold. For example, California's Prop. 65 regulations require notification where the phthalate content exceeds .1% in products sold in California.
Institute for Legal Reform Issues Report Assessing Litigation Trends Affecting the Business Community
By: Genevieve Essig
In October, the U.S. Chamber Institute for Legal Reform issued a report, The New Lawsuit Ecosystem: Trends, Targets and Players, presenting an analysis of the “lawsuit ‘ecosystem’ for the areas of litigation abuse of most concern to the business community” and the direction in which the associated litigation trends are heading. The report covers a wide variety of subject matters, including class action litigation, mass tort litigation, asbestos litigation, securities and M&A litigation, False Claims Act litigation, and wage and hour litigation. The following observations from the report may be of particular interest to environmental attorneys:
- There has been a rise in lung cancer claims in asbestos litigation
- A few areas of mass tort litigation are waning, including climate change litigation and welding fume litigation (alleging that the manganese in welding fumes causes neurological injury)
- There has been a renewed interest in “fear of disease” claims / claims seeking medical monitoring for exposure to potentially harmful substances
The authors of the report note that lung cancer cases are “ideal” for plaintiffs’ lawyers because the life-threatening nature of the disease will support a trial preference regardless of the etiology of the disease. Further, despite causation challenges, the claims can involve significant damages and settlement value. The authors report that in Madison County, Illinois, lung cancer claims exceeded mesothelioma claims for the first time in 2012 (though the surge apparently subsided as of June 2013). A rise in such claims has been observed in other jurisdictions as well.
As for medical monitoring claims, the authors recount opinions of the U.S. Supreme Court and a number of state supreme courts in the late 1990s and early 2000s resisting medical monitoring claims in recognition of the possibility that permitting recovery for medical monitoring could divert resources from individuals who actually become sick or may become sick to those who are not sick and may never become sick as a result of their alleged exposure, but observe that the holdings in a handful of more recent cases indicate that “the pendulum has started to swing back toward permitting medical monitoring claims, in some circumstances.”
EPA Ordered To Move Forward With Coal Ash Waste Rule
By Allison A. Torrence
On October 29, 2013, a federal district court judge ordered EPA to submit to the court within 60 days a plan and schedule for finalizing coal ash rules under the Resource Conservation and Recovery Act (RCRA). Appalachian Voices v. McCarthy, No. 12-cv-00523 (D.D.C. Oct. 29, 2013). Coal ash, also called coal combustion residuals (CCRs), is created as a byproduct of coal combustion at power plants. Coal ash is generally disposed of in either liquid form in surface impoundments or in solid form at landfills and is largely exempt from hazardous waste and solid waste regulations under RCRA.
Recent interest in regulating coal ash waste was prompted by the December 2008 spill at a coal ash storage facility for the Tennessee Valley Authority’s Kingston Fossil Plant. An estimated 1 billion gallons of coal ash slurry was released from the Kingston facility after a retaining wall in the surface impoundment failed. In response to the coal ash spill, in June 2010, EPA proposed to regulate coal ash to address the risks from the disposal of coal ash waste. The 2010 proposed rules provided two options for regulating coal ash: (1) regulate coal ash as a special waste under RCRA’s hazardous waste regulations; or (2) regulate coal ash under RCRA’s non-hazardous solid waste regulations. EPA has received approximately 450,000 comments on these proposed rules and has published additional data on the proposed rules, but has yet to finalize any regulations. Under the solid waste proposed rule, current surface impoundments would have to be retrofitted with new composite liners or cease operations within five years. Existing landfills would not need new liners, but would require groundwater monitoring. In the event that EPA were to elect to regulate coal ash as a special waste, coal ash impoundments or landfills would need RCRA permits and surface impoundments would effectively be phased out of use due to land disposal restrictions. Although EPA has indicated that the second option - regulating coal ash as a non-hazardous solid waste - is the most likely outcome, it has yet to issue final regulations.
After almost four years of inaction on the regulatory front, several environmental organizations sued EPA under the citizens’ provisions of RCRA for failure to finalize its RCRA regulations for coal ash. The environmental groups argued that under the statutory language in RCRA, EPA is required to review and, if necessary, revise hazardous waste and solid waste regulations every three years. Thus, they argued that EPA was required to review its decision not to regulate coal ash as a hazardous waste or solid waste at least every three years, which it has failed to do. In his October 29th Memorandum Opinion, District Court Judge Walton ruled in favor of EPA on a number of counts, holding that coal ash is exempted from RCRA’s general review and revision process for hazardous wastes. Nevertheless, Judge Walton ruled in favor of the environmental groups on the issue of non-hazardous solid waste regulations. Judge Walton held that EPA has a non-discretionary duty to review and, if necessary, revise solid waste regulations concerning coal ash at least every three years. Judge Walton declined to provide a set deadline for EPA to issue its review or regulations. Instead, he ordered EPA to submit a proposed scheduling order setting forth a proposed deadline by which it will comply with its statutory obligations under RCRA. EPA must submit this proposed schedule within 60 days (by December 30, 2013), at which point the environmental groups will have an opportunity to file a response to EPA’s proposed schedule.
OSHA Issues New “Recommended” Permissible Exposure Levels For Chemicals In The Workplace
By Steven M. Siros
In lieu of formal notice and comment rulemaking, the Occupational Safety and Health Administration ("OSHA") recently issued new "voluntary" standards for workplace chemical exposure. These new voluntary exposure limits can be found on OSHA's website in a tabular format, allowing for side-by-side comparisons of OSHA's existing permissible exposure limits ("PELs") with these new, voluntary exposure levels recommended by organizations such as the National Institute for Occupational Safety and Health and the American Conference of Governmental Industrial Hygienists.
According to David Michaels, OSHA's existing chemical standards are not adequately protective and he advises employers to utilize these recommended exposure limits "since simply complying with OSHA's antiquated [PELs] will not guarantee that workers are safe." Of course, from a regulatory perspective, OSHA can only enforce its existing PELs. From a toxic tort exposure perspective, however, plaintiffs' counsel are sure to argue that these "voluntary" standards establish the appropriate exposure threshold and that any exposure above these voluntary standards is harmful (and in turn, compensible). For many chemicals, the difference between the enforceable PEL and the voluntary limit is substantial. For example, the OSHA PEL for tetrachloroethylene is 100 ppm and the new voluntary standard is 25 ppm.
Please click here to see a copy of the OSHA news release on this topic.