New Climate Change Lawsuit: Publicity Stunt or Reasonable Effort to Protect California Property Owners?
By Steven M. Siros
Answering this question is likely to engender significant debate, depending on which side of the global warming conundrum one finds oneself. However, a recent lawsuit by two California counties and one California city is likely to prompt such a debate which will play out in California state court. On July 17, 2017, Marin County, San Mateo County, and the City of Imperial Beach filed separate but similar environmental lawsuits in California state court claiming that 37 oil, gas, and coal companies caused (or will cause) billions of dollars in climate-change related damages as a result of their extraction and sale of fossil fuels in California. The multi-count complaints allege a variety of state common law claims, including public nuisance, negligent failure to warn, and trespass. The complaints contend that as result of the activities of these defendants, sea levels will rise which will cause billions of dollars in losses to each of the plaintiffs.
These cases represent the latest in what has been to date a series of unsuccessful efforts to hold energy companies responsible for future speculative damages associated with alleged future environmental impacts associated with climate change. These cases will likely be subject to early dispositive motions seeking to have these cases thrown out of court at an early stage. We will continue to follow these cases and provide additional updates.
U.S. EPA’s Stay of Methane Rule May Have Hit a “Speed Bump”
By Steven M. Siros
On July 3, 2017, the U.S. Court of Appeals for the District of Columbia issued an opinion which vacated U.S. EPA’s stay of certain provisions of new source performance standards (“NSPS”) relating to fugitive emissions of methane and other pollutants by the oil and natural gas industries. After U.S. EPA originally published these NSPS rules in 2016, several industry groups sought reconsideration of these rules pursuant to Section 307(d)(7)(B) of the Clean Air Act (“CAA”). On April 18, 2017, U.S. EPA Administrator Scott Pruitt found that the petitions raised at least one objection to the rule that warranted reconsideration and on June 5, 2017, just two days prior to the deadline requiring regulated entities to conduct initial methane monitoring in order to identify potential equipment leaks, U.S. EPA agreed to stay the rule for 90 days while the rule was being reconsidered. Then, on June 16, 2017, U.S. EPA published a notice of proposed rulemaking seeking to extend the stay for an additional two years. Several environmental groups filed an emergency motion challenging U.S. EPA’s decision to stay the rules for 90 days.
In a split decision, the D.C. Circuit agreed that a stay pursuant to Section 307(d)(7)(B) of the CAA was only allowed if the following specific requirements of the rule are met: (1) it was impracticable to raise the objections now being raised during the notice and comment period and (2) the objection is of central relevance to the outcome of the rule. The Court found that both requirements were not met, noting that the “administrative record thus makes clear that the industry groups had ample opportunity to comment on all four issues for which EPA granted reconsideration, and indeed, that in several instances the agency incorporated those comments directly into the final rule.” The Court also addressed industries’ argument that U.S. EPA’s decision to reconsider the rule was not a final agency action. The Court agreed, over Judge Brown’s dissent, that although U.S. EPA’s decision to reconsider the rule was not a final agency action, U.S. EPA’s decision to stay the rule was tantamount to amending or revoking the rule and was in fact reviewable. It is important to note that notwithstanding the Court’s decision that U.S. EPA improperly stayed the NSPS rules pursuant to Section 307(d)(B)(7) of the CAA, the Court specifically stated that “nothing in this opinion in any way limits EPA’s authority to reconsider the final rule and to proceed with its June 16 [notice of proposed rulemaking]," which seeks to stay the effective date of the NSPS for two years.
This decision may provide some insight as to how the Court intends to deal with a separate pending lawsuit filed by environmental groups which seeks to challenge U.S. EPA’s decision to stay revisions to the CAA’s risk management program; U.S. EPA relied on Section 307(B)(7) to justify its decision to stay those rules as well.
Nanomaterial Reporting Rule Update
By E. Lynn Grayson
EPA recently extended the effective date of the final reporting and recordkeeping requirements for certain chemical substances when they are manufactured or processed at the nanoscale. EPA has delayed the effective date of the January 12, 2017 final rule from May 12, 2017 to August 14, 2017.
Industry sought to repeal the rule, or at a minimum, obtain an extension of the effective until EPA adopts guidance explaining how to comply with the new two-fold requirements including: 1) companies that make, import or process a distinct or “discrete” form of a nanoscale chemical at some time in the future are to provide information to EPA (135 days before they make, import or process the chemical or within 30 days of deciding to manufacture or process the chemical); and 2) companies must comply with a one-time obligation to report information known or reasonably attainable regarding any nanoscale chemicals made or processed at any time during the past three years. Based upon the information EPA receives, the Agency could decide to require new toxicity, exposure or other data or it could decide to impose restrictions on commercial activity.
Nanomaterials—a diverse category of materials defined mainly by their small size—often exhibit unique properties that can allow for novel applications but also have the potential to negatively impact human health and the environment. Some nanomaterials: more easily penetrate biological barriers than do their bulk counterparts; exhibit toxic effects on the nervous, cardiovascular, pulmonary and reproductive systems; or have antibacterial properties that may negatively impact ecosystems.
Regulation of nanomaterial has created conflict between industry and environmental groups. The Nanomanufacturing Association suggests the rule is a de facto permitting program, while environmental groups believe the rule is long overdue and its impacts are limited by the authorities and procedures already existing under the Toxic Substances and Control Act (TSCA), the federal statute authorizing the new rule. Nanomaterials are used in a variety of commercial and industrial applications including paints, coatings, resins and a host of consumer products ranging from washing machine parts to lithium ion batteries.
A number of scientific organizations have called for the need for the kinds of information on nanomaterials EPA will now be able to collect including the National Academy of Science and the National Nanotechnology Initiative. At this time, it is unclear if the EPA draft guidance will be finalized before the effective date of the new rule.
EPA Extends Deadline for 2015 Ozone Air Quality Area Designations
By Allison A. Torrence
On June 6, 2017, EPA Administrator Scott Pruitt sent a letter to the nation’s governors, informing them that EPA is extending the deadline for promulgating initial area designations, by one year, for the 2015 ozone National Ambient Air Quality Standards (“NAAQS”). The Obama Administration promulgated new ozone NAAQS in October 2015, lowering the standards from 75 parts per billion to 70 parts per billion. Under the Clean Air Act, EPA had two years, or until October 1, 2017, to designate areas in the U.S. as being in attainment or nonattainment with the new ozone NAAQS. Administrator Pruitt’s one-year extension pushes the deadline for those designation to October 1, 2018.
As we previously reported, the 2015 ozone NAAQS have been challenged in the U.S. Court of Appeals for the D.C. Circuit by various states, companies, and environmental organizations in the case of Murray Energy Corp. v. EPA, Case No. 15-1385. On April 11, 2017, the D.C. Circuit Court granted EPA’s motion to continue oral argument and indefinitely delay any decision on challenges to the 2015 ozone NAAQS. In its motion, EPA stated that it was “closely reviewing the 2015 [ozone NAAQS] Rule to determine whether the Agency should reconsider the rule or some part of it.” The D.C. Circuit’s order directed EPA to submit status reports every 90 days.
The press release announcing EPA’s decision to extend this initial deadline explains the agency’s justification for the extension.
The Agency is taking time to better understand some lingering, complicated issues so that air attainment decisions can be based on the latest and greatest information. This additional time will also provide the agency time to review the 2015 ozone NAAQS, prior to taking this initial implementation step.
In his letter to state governors, Administrator Pruitt stated that:
States have made tremendous progress and significant investment cleaning up the air. Since 1980, total emissions of the six principal air pollutants have dropped by 63 percent and ozone levels have declined by 33 percent. Despite the continued improvement of air quality, costs associated with compliance of the ozone NAAQS have significantly increased. I am committed to working with you and your local officials to effectively implement the ozone standard in a manner that is supportive of your air quality improvement efforts, without interfering with local decisions or impeding economic growth.
Once again, EPA’s actions indicate it is considering whether it can and should scale back the ozone NAAQS, potentially to the 75 parts per billion levels set back in 2008.
President Announces Plan to Withdraw the United States from the Paris Climate Agreement
By Allison A. Torrence
On Thursday, June 1, President Trump announced his intention to withdraw the United States from the landmark Paris Agreement on Climate Change. As we previously reported, the Paris Agreement was adopted on December 12, 2015, at a meeting of the 195 parties to the United Nations Framework Convention on Climate Change (UNFCCC). The historic Paris Agreement is designed to reduce greenhouse gas emissions from both developed and developing nations. Specifically, governments must take actions to limit global temperature rise to well below 2 degrees Celsius, and to strive to limit global temperature rise to 1.5 degrees Celsius. The Paris Agreement also requires developed countries fund investments to assist developing countries meet the Agreement’s goals and adapt to climate change impacts.
The United States and over 150 other countries signed the Paris Agreement at ceremony at United Nations headquarters in New York on Earth Day, April 22, 2016. The Paris Agreement entered into force on November 4, 2016, after being ratified by more than 55 countries, accounting for 55% of global greenhouse gas emissions, per the terms of the Agreement. The Paris Agreement entered into force less than a year after it was adopted, a very quick schedule for a large and complex international treaty. At least one driver in that speed was the desire to have the Paris Agreement in force before the 2016 United States presidential elections, in light of the fact that then-candidate Trump had vowed to pull out of the Paris Agreement if elected.
President Trump is making good on that election promise to withdraw from the Paris Agreement. However, because the international community ratified the Paris Agreement so quickly, it went into full force before President Trump took office. The terms of the Paris Agreement do not allow a party to the agreement to withdraw immediately. Instead, the earliest a party can withdraw from the Paris Agreement is four years after it entered into force.
Specifically, Article 28 of the Paris Agreement states that:
At any time after three years from the date on which this Agreement has entered into force for a Party, that Party may withdraw from this Agreement by giving written notification to the Depositary.
Any such withdrawal shall take effect upon expiry of one year from the date of receipt by the Depositary of the notification of withdrawal, or on such later date as may be specified in the notification of withdrawal.
Thus, the earliest that the United States can notify the UNFCCC that it will be withdrawing from the Paris Agreement is November 5, 2019. If the United States notifies the UNFCCC on that date, the withdrawal will take effect on November 5, 2020. Notably, the next presidential election will take place on November 3, 2020.
Although the United States can’t withdraw immediately, President Trump stated yesterday that the United States will not be following or implementing the Paris Agreement.
As of today, the United States will cease all implementation of the non-binding Paris Accord and the draconian financial and economic burdens the agreement imposes on our country. This includes ending the implementation of the nationally determined contribution and, very importantly, the Green Climate Fund, which is costing the United States a vast fortune.
World leaders have responded to the President’s decision to abandon an international agreement signed by every country in the world other than Syria and Nicaragua. President Trump indicated that he wants to renegotiate a new climate deal, but Italian Prime Minister Paolo Gentiloni, German Chancellor Angela Merkel and French President Emmanuel Macron rebuked President Trump in a rare joint statement:
We deem the momentum generated in Paris in December 2015 irreversible and we firmly believe that the Paris Agreement cannot be renegotiated since it is a vital instrument for our planet, societies and economies.
In the United States, many businesses, cities and states have reacted to the President’s announcement by pledging to meet the United States’ emissions reductions targets under the Paris Agreement. As reported by various news outlets, former New York City Mayor Michael Bloomberg is coordinating a group of 30 mayors, three governors, dozens of university presidents and over 100 businesses, which want to submit a plan to the UNFCCC documenting efforts to reduce greenhouse gas emissions.
Senate Rejects Resolution to Repeal Obama Administration Climate Change Methane Rule
By Allison A. Torrence
In a surprising move, on Wednesday May 10th, the U.S. Senate voted 51 to 49 to reject a resolution under the Congressional Review Act (CRA) to repeal a 2016 Bureau of Land Management (BLM) rule aimed at reducing methane releases from oil and gas wells on public land. The rule at issue was published by BLM in the Federal Register on November 18, 2016 (81 FR 83008), and amends 43 CFR Parts 3100, 3160 and 3170 (the Methane Rule).
BLM has stated that the goal of the Methane Rule is to bring the 30-year-old oil and gas production rules in line with technological advances in the industry. The Methane Rule provides numerous rules and restrictions on oil and gas production operations on public and Indian lands, including:
Setting an upper limit on routine gas flaring.
Requiring operators to evaluate opportunities for gas capture and prepare a waste minimization plan before drilling a development oil well.
Requiring operators to use an instrument-based leak detection program to find and repair leaks.
Prohibiting operators from venting natural gas, except in narrowly specified circumstance.
The Methane Rule was part of the Obama Administration’s Climate Action Plan, aimed at reducing greenhouse gasses (GHGs) from various industries. While many of the past administration’s climate change regulations focused on carbon dioxide emissions, methane is an important GHG because it has over 25 times the warming potential of carbon dioxide.
Under the CRA, Congress can vote to repeal regulations within 60 legislative days of their completion. When a regulation is repealed under the CRA, current and future administrations are prohibited from issuing any substantially similar regulations. Since President Trump took office, Congress and the White House have repealed more than a dozen regulations promulgated at the end of the Obama Administration. With the Methane Rule set to be the next regulation repealed, three Republican Senators decided to join with the Democrats and vote against the resolution – Senators John McCain of Arizona, Lindsey Graham of South Carolina and Susan Collins of Maine.
Now that the Senate has rejected efforts to repeal the Methane Rule, it remains good law unless and until BLM takes new regulatory action to amend or replace it through traditional rulemaking procedures. More information about the Methane Rule can be found on the BLM website.
Jenner & Block Hosting Environmental Risk CLE Presentation with CBA and A&WMA
By Allison A. Torrence
On Thursday, May 11th, from 12-1 pm, Jenner & Block will host a CLE presentation on Environmental Risk: Best Practices in Spotting, Evaluating, Quantifying and Reporting Risk. Business risk associated with environmental issues is an important topic that is often not fully understood by in-house counsel or outside attorneys and consultants. Effectively spotting, evaluating and managing environmental risk plays an important role in the success of a business and should be understood by all environmental attorneys and consultants advising businesses. This program will help you improve your ability to spot, evaluate, quantify and report on risk to provide value for your clients and their businesses.
Jenner & Block is pleased to be joined by members of the CBA Environmental Law Committee and the Air & Waste Management Association.
The presentation will be moderated by Christina Landgraf, Counsel, Environmental, Health & Safety, United Airlines, Inc. and Jenner Partner Allison Torrence. The panel of speakers will include Jenner Partner Lynn Grayson, Kristen Gale, Associate, Nijman Franzetti and Jim Powell, Director, Environmental Permitting, Mostardi Platt.
The CLE presentation will be held at Jenner & Block, 353 N. Clark St., Chicago, IL – 45th Floor, from 12-1 pm. Lunch will be provided starting at 11:45 am. If you are unable to attend in person, you can participate via webinar.
You can RSVP here.
Any questions can be directed to Pravesh Goyal: (312) 923-2643 or email@example.com
Earth Day 2017: Environmental and Climate Literacy
By Steven M. Siros
As has been the case for the past several years, we are pleased to present a special blog posting commemorating Earth Day. This year, Earth Day is Saturday, April 22, 2017 and the Earth Day campaign is "Environmental and Climate Literacy". This campaign is focused on working to ensure that the general public is educated and literate with respect to environmental issues. For more information regarding this campaign, please click here.
The very first Earth Day, which was held in America in 1970 following a devastating oil spill, is credited as the beginning of the modern environmental movement. Now, more than forty years later, Earth Day is a global event with festivals, rallies and other events will be taking place at various locations throughout the world.
In special commemoration of Earth Day 2017, we have linked to the following two "TED" talks which we hope that you will find interesting. The first "TED" talk (click here) focuses on the Great Lakes, which represent one of the largest collections of fresh water in the world. The second "TED" talk is done by renowned architect Jeanne Gang and focuses on blending nature into architectural projects (click here). Happy Earth Day 2017.
Litigation in D.C. Circuit Court Put on Hold While EPA Reconsiders 2015 Ozone Air Quality Standards
By Allison A. Torrence
On Tuesday, April 11th, the U.S. Court of Appeals for the D.C. Circuit granted EPA’s motion to continue oral argument and indefinitely delay any decision on challenges to the agency’s 2015 National Ambient Air Quality Standards (NAAQS) for ozone in the case of Murray Energy Corp. v. EPA, Case No. 15-1385. The Clean Air Act requires EPA to issue NAAQS for certain criteria air pollutants, like ozone, and review those NAAQS every five years. The NAAQS establish the permissible levels of air pollutants in the ambient air. If an area has pollution at levels above the NAAQS, it is classified as a nonattainment area. States with nonattainment areas are required to create and implement plans, under EPA’s oversight, to reduce air pollutants to levels below the NAAQS.
Prior to the rule at issue, EPA last revised the ozone NAAQS in 2008, setting the primary and secondary ozone standards at 75 parts per billion (ppb). Shortly after President Obama took office in 2009, EPA began reviewing the NAAQS and conducted extensive scientific, medical, technical and policy research. EPA found that ozone was strongly linked to serious health effects, such as triggering asthma attacks and other respiratory effects. Based on that research, in 2015, EPA issued a revised NAAQS for ozone, lowering the primary and secondary standards to 70 ppb. Numerous parties challenged the 2015 ozone NAAQS in the D.C. Circuit Court – industry challengers claimed the rule was too stringent, while environmental and public health organizations claimed it was not protective enough.
The parties completed briefing on the merits on September 26, 2016, and oral argument was scheduled for April 19, 2017. On April 7th, just eight business days before oral arguments were scheduled, EPA filed a motion to continue oral argument. EPA stated in its motion that “EPA officials appointed by the new Administration are closely reviewing the 2015 [ozone NAAQS] Rule to determine whether the Agency should reconsider the rule or some part of it.” As precedent for the requested delay, EPA cited a similar request from the Obama Administration in 2009, which stayed challenges to the 2008 ozone NAAQS prior to briefing on the merits, as EPA evaluated the rules set by the prior administration. The Obama Administration eventually decided to leave the 2008 ozone NAAQS as they were and instead began working on the 2015 ozone NAAQS. The challenges to the 2008 ozone NAAQS were allowed to go forward and where eventually denied by the D.C. Circuit Court.
As additional support for its motion, EPA cited President Trump’s March 28, 2017 Executive Order, which directs EPA to review for possible reconsideration any rule that could “potentially burden the development or use of domestically produced energy sources, with particular attention to oil, natural gas, coal, and nuclear energy sources.” Under the Executive Order, for any such rule, EPA must (1) submit a review plan to the White House within 45 days; (2) submit a draft plan with “specific recommendations that, to the extent permitted by law, could alleviate or eliminate aspects of agency actions that burden domestic energy production” within 120 days, and (3) submit a final report within 180 days. EPA stated that it “is currently reviewing the Executive Order to determine whether the 2015 [ozone NAAQS] Rule is potentially subject to the review process set forth in this Executive Order.”
Despite opposition from public health and environmental organizations, including Sierra Club, Natural Resources Defense Council, and the American Lung Association, the D.C. Circuit granted EPA’s motion and indefinitely continued oral argument. The court directed EPA to submit status reports every 90 days.
EPA appears to be at the very initial stages of its review of the 2015 ozone NAAQS, and how it may ultimately decide to act on that rule remains unclear. Nevertheless, EPA’s statements to the D.C. Circuit Court, in connection with President Trump’s March 28, 2017 Executive Order, indicate EPA is considering whether it can and should scale back the ozone NAAQS, potentially to the 75 ppb levels set back in 2008.
Scott Pruitt Confirmed by Senate to Lead EPA
By Allison A. Torrence
Friday afternoon, Scott Pruitt was confirmed by the Senate to serve as the Administrator of the U.S. Environmental Protection Agency. 52 Senators voted for Mr. Pruitt’s confirmation, while 46 Senators voted against him. The vote was largely along party lines, with Democratic Senators Heidi Heitkamp of North Dakota and Joe Manchin of West Virginia voting for Pruitt and Republican Susan Collins of Maine voting against him.
As we previously reported here, Mr. Pruitt has been the Attorney General of Oklahoma since his election to that post in 2011. As Oklahoma Attorney General, Mr. Pruitt has sued EPA numerous times to challenge EPA regulations, including current litigation over the Obama Administration’s Clean Power Plan. Oklahoma is part of the coalition of 28 states challenging EPA’s regulation of greenhouse gas emissions from existing power plants – a key component of the Clean Power Plan – in the case of West Virginia v. EPA, Case No. 15-1363. This case is currently pending in the U.S. Court of Appeals for the D.C. Circuit.
Mr. Pruitt’s confirmation came after a flurry of activity related to his nomination over the past several days. On Thursday, a federal judge ordered the Oklahoma Attorney General’s office to release thousands of emails related to Mr. Pruitt’s communications with fossil fuel companies while Attorney General. Senate Democrats wanted to delay Mr. Pruitt’s confirmation vote until after those emails were made public, and held an all-night session of the Senate to voice their concerns over Mr. Pruitt. However, when a motion to extend debate and delay Mr. Pruitt’s confirmation vote until February 27th was put forward by the Senate Democrats, the motion was voted down and the confirmation vote went forward today.
One of the first orders of business for Administrator Pruitt will be to review recent and pending EPA regulations that have been subject to the Trump Administration’s “Regulatory Freeze Pending Review.” As we previously reported here, all pending EPA regulations that have not yet been published in the Federal Register are on hold, and all EPA regulations that have been published in the Federal Register but had not reached their effective date (as of January 26, 2017) have be delayed until March 21, 2017.
Administrator Pruitt’s biography is already posted at EPA’s website. The biography sates that:
Administrator Pruitt believes that promoting and protecting a strong and healthy environment is among the lifeblood priorities of the government, and that EPA is vital to that mission.
As Administrator, Mr. Pruitt’s overarching goal is to lead EPA in a way so that our future generations inherit a better and healthier environment, as he works with the thousands of dedicated public servants at EPA who have devoted their careers to helping realize this shared vision, while faithfully administering environmental laws.
The EPA website also invites the public to join the new Administrator on Tuesday, February 21, 2017 at noon ET, as he addresses EPA employees, and to “stay tuned” for more information.
Happy New Year from the Corporate Environmental Lawyer Blog
By Steven M. Siros and Allison A. Torrence
As we begin the New Year, we wanted to take a moment to look back at some of the major EHS developments in 2016 and think about what we can expect in 2017.
2016 was a busy year for the Corporate Environmental Lawyer blog, which is now in its sixth year with over 760 posts. In 2016, we had nearly 100 blog posts from 10 different authors and over 6,700 visits to the site.
Our five most popular blogs from 2016 were:
EPA Lacks Authority to Regulate Plastic Microbeads in Water, by E. Lynn Grayson
Court Orders New EPA Spill Prevention Rules, by E. Lynn Grayson
Bipartisan TSCA Reform Act Signed by President Obama, by Allison A. Torrence
Navigating Hawkes, the Newest Wetlands Ruling from the Supreme Court, by Matt Ampleman
ExxonMobil, 13 State Attorneys General Fight Back Against the Exxon Climate Probes, by Alexander J. Bandza
As always, we are monitoring a variety of issues that are important to you and your business, including, for example, RCRA regulatory changes, the future of climate change regulation, implementation of the TSCA Reform Act, and new developments in environmental litigation. You can find current information about these developments and more on the Corporate Environmental Lawyer blog. If you don’t find what you are looking for on our blog, we welcome your suggestions on topics that we should be covering. In addition, keep abreast of new developments in the EHS area through our Twitter @JennerBlockEHS.
We also look forward to the opportunity to share our thoughts and insights with respect to current EHS issues with you at an upcoming program:
The program will take place at Jenner & Block’s Chicago office and also will be available as a webinar. We will post a formal invitation to the program in a few weeks.
We also invite you to visit our newly redesigned Environmental and Workplace Health & Safety Law Practice website for more information about our practice. We look forward to another exciting year and to connecting with you soon.
Trump Administration Issues Freeze on New and Pending Rules – Halting Dozens of Recent EPA Rules
By Allison A. Torrence
Last Friday, White House Chief of Staff Reince Priebus issued a memorandum directing all agencies, including EPA, to freeze new or pending regulations. The freeze effects regulations at a variety of stages of finality. Under the Administration’s direction, the following actions are being taken by EPA and other agencies:
Regulations that have been finalized but not yet been sent for publication in the Federal Register will not be sent until reviewed by someone selected by the President.
Regulations that have been sent to the Federal Register but not published will be withdrawn.
Regulations that have been published in the Federal Register but have not reached their effective date will be delayed for at least 60 days for review (until March 21, 2017).
Following through on this direction, EPA released a notice that will be published in the Federal Register on January 26, 2017, delaying implementation of all published rules that have yet to take effect until at least March 21, 2017. The delayed rules include EPA’s Risk Management Program (RMP) facility safety rule, the 2017 Renewable Fuel Standard (RFS) targets, and the addition of vapor intrusion to Superfund NPL site scoring.
OSHA Issues Final Beryllium Rule Reducing Workplace Exposure Limit 10-Fold
By Allison Torrence
The Occupational Safety and Health Administration (OSHA) published a final rule on Occupational Exposure to Beryllium in the Federal Register on January 9, 2017. The final rule reduces the permissible exposure limit (PEL) for beryllium to 0.2 μg/m3, averaged over 8-hours. The previous PEL for beryllium, established more than 40 years ago, was 2.0 μg/m3. The rule also establishes a new short term exposure limit for beryllium of 2.0 μg/m3, over a 15-minute sampling period.
As we discussed previously on this blog, OSHA proposed this rule on August 7, 2015 and took extensive public comment before issuing this final version. OSHA estimates that approximately 62,000 workers are exposed to beryllium in their workplaces and that the rule will save almost 100 lives from beryllium-related diseases and prevent 46 new cases of chronic beryllium disease each year, once the effects of the rule are fully realized.
In addition to the PEL reductions, the final rule requires employers to use engineering and work practice controls (such as ventilation and change rooms) to limit worker exposure to beryllium; provide respirators when controls cannot adequately limit exposure; limit worker access to high-exposure areas; develop a written exposure control plan; and train workers on beryllium hazards. The rule also provides for medical exams to monitor exposed workers and medical removal protection benefits to workers identified with a beryllium-related disease.
The rule will take effect on March 10, 2017. Employers will have one year (until March 12, 2018) to comply with most of the requirements, two years (until March 11, 2019) to provide any required change rooms and showers, and three years (until March 10, 2020) to implement engineering controls.
More information on the Occupational Exposure to Beryllium rule is available on the OSHA website.
VW Agrees to $4.3 Billion Settlement of Diesel Emission Claims
By Allison Torrence
On January 11, 2017, the U.S. Department of Justice announced that Volkswagen AG (VW) has agreed to plead guilty to three criminal felony counts and pay a $2.8 billion criminal penalty for selling approximately 590,000 diesel vehicles in the U.S. that had installed defeat devices to cheat on emissions tests mandated by the Environmental Protection Agency (EPA). VW will be on probation for three years and under an independent corporate compliance monitor who will oversee the company for at least three years. VW has also agreed to pay $1.5 billion to settle separate civil violations under the Clean Air Act (CAA) as well as other customs and financial claims.
We previously reported on EPA’s CAA lawsuit on this blog, which was filed on January 4, 2016, and alleged multiple CAA violations stemming from allegations that VW installed defeat devices in the subject diesel vehicles designed to cheat EPA emissions tests. EPA sought civil penalties and injunctive relief. In October, VW settled EPA’s injunctive relief claims along with consumer class action claims in a settlement valued at approximately $15.3 billion.
In addition, a federal grand jury in the Eastern District of Michigan returned an indictment on January 11, 2017, charging six VW executives and employees with criminal conspiracy to defraud the United States, defraud VW’s U.S. customers and violate the CAA. One of these VW employees, Oliver Schmidt, was arrested on January 7, 2017, in Miami during a visit to the United States and appeared in federal court there on Monday. The other defendants are believed to presently reside in Germany.
The settlement announcement was made by Attorney General Loretta E. Lynch, who was joined by EPA Administrator Gina McCarthy. Attorney General Lynch stated that:
Today’s actions reflect the Justice Department’s steadfast commitment to defending consumers, protecting our environment and our financial system and holding individuals and companies accountable for corporate wrongdoing. In the days ahead, we will continue to examine Volkswagen’s attempts to mislead consumers and deceive the government. And we will continue to pursue the individuals responsible for orchestrating this damaging conspiracy.
The Department of Justice statement on the VW settlement is available here.
Oklahoma Attorney General Scott Pruitt Picked to Lead EPA
By Allison Torrence
Several news outlets are reporting that President-elect Donald Trump will nominate Oklahoma Attorney General Scott Pruitt to serve as the Administrator of the U.S. Environmental Protection Agency. Mr. Pruitt has been the Attorney General of Oklahoma since his election to that post in 2011. In his role as Oklahoma Attorney General, Mr. Pruitt has been active in litigation challenging current EPA regulations in court, most significant of which have been challenges to the Obama Administration’s Clean Power Plan.
Mr. Pruitt and Oklahoma are part of the coalition of 28 states challenging EPA’s regulation of greenhouse gas emissions from existing power plants – a key component of the Clean Power Plan – in the case of West Virginia v. EPA, Case No. 15-1363. This case is currently pending in the U.S. Court of Appeals for the D.C. Circuit, which recently heard nearly seven hours of oral arguments and is expected to issue a ruling soon.
Environmental groups have been quick to react to Mr. Pruitt’s apparent nomination. Sierra Club Executive Director, Michael Brune released a statement critical of the pick:
Having Scott Pruitt in charge of the U.S. Environmental Protection Agency is like putting an arsonist in charge of fighting fires…We strongly urge Senators, who are elected to represent and protect the American people, to stand up for families across the nation and oppose this nomination.
Mr. Pruitt’s appointment must be confirmed by the U.S. Senate. Several Democratic Senators have already raised concerns over his nomination, including Senator Brian Schatz (D-HI), who tweeted that he “will do everything I can to stop this.”