Mine Safety & OSHA Reform Bill Approved by House Committee
By Gabrielle Sigel
On July 21, 2010, the Education and Labor Committee for the House of Representatives voted 30-17 to send to the full House the Robert C. Byrd Miner Safety and Health Act of 2010 (H.R. 5663). The bill incorporates portions of the previously introduced Protecting America's Workers Act (H.R. 2067, S. 1580) and addresses safety in both mines and other workplaces. With respect to revisions to the Occupational Safety and Health Act, the Byrd bill increases civil and criminal penalties, expands family members' rights in settlement of violations, requires abatement during the period that citations are contested, and enhances protection for whistleblowers. The Committee also passed amendments to H.R. 5663 which affects the employer's burden of proof and the statutory standard for criminal liability. In addition, the Committee approved providing OSHA enhanced mechanisms for requiring state plan programs to conform to federal requirements. The authority of the Mine Safety and Health Administration ("MSHA") would be expanded to allow for increased penalties and enhanced enforcement, including with respect to the right to close down an unsafe mine, subpoena documents and testimony, and require additional training for miners. Republican efforts to modify these expansions of OSHA's and MSHA's authority were largely rejected, and the bill was voted out of Committee along party lines.
Trafigura Fined $1.3M Over International Toxic Waste Dumping
By E. Lynn Grayson
The Dutch Supreme Court fined Trafigura Beheer, one of the world's largest companies trading commodities, $1.3M for delivering hazardous waste to Amsterdam while concealing the true nature of the wastes and exporting the wastes to Cote D'Ivoire for disposal. The high court described Trafigura's actions as the most serious offense possible under the European Union's waste shipment regulation prohibiting such exports to third-world countries. According to Amnesty International, the court's guilty verdict is the first time the company has been held criminally accountable for its involvement in the export of hazardous wastes to Cote D'Ivoire.
The case arises from the 2006 incident wherein Trafigura off-loaded waste from a ship in Amsterdam for disposal but for alleged cost considerations, reloaded and transported the waste to Cote D'Ivoire. In August, 2006, 408 tons of highly toxic petrochemical waste and caustic soda were dumped in various locations around the City of Abidjan. As a result, over 100,000 local residents sought medical attention for a range of health problems. Trafigura already has paid other settlements resulting from this 2006 incident including $197M to the Ivory Coast government and $47.8M to affected residents.
The Dutch case focused on events in the Netherlands highlighting to many observers the challenges of prosecuting companies for actions that cross borders. Amnesty International has met and worked with those impacted by the dumping and noted "there is an urgent need for the international community to learn the lessons from this incident. States must do more to ensure that multinationals respect human rights both at home and abroad." More information about this incident and the recent verdict can be obtained through Amnesty International at http://www.amnestyusa.org/.
NRDC Report Says Climate Change Will Cause U.S. Water Shortages
By E. Lynn Grayson
The National Resources Defense Council (NRDC) has joined other environmental organizations, government authorities and industry groups in confirming that climate change factors will result in serious water shortages in the United States. In a report released July 20, 2010 titled Evaluating Sustainability of Projected Water Demands Under Future Climate Change Scenarios, the NRDC concludes that "impacts of climate change will greatly increase the number of areas where renewable water supply will be lower than withdrawal, therefore increasing the number of areas vulnerable to future water shortages." Click here for report.
According to the report, performed by the environmental consulting firm, Tetra Tech, for the NRDC, over 1,100 U.S. counties will see greater risks of water shortages due to the effects of climate change and 400 of these counties will face extremely high risks of water shortages. Fourteen states are highlighted as being the most at risk: Arizona; Arkansas; California; Colorado; Florida; Idaho; Kansas; Mississippi; Montana; Nebraska; Nevada; New Mexico; Alabama; and, Texas.
According to the NRDC, the only way to truly manage the risks exposed by this report is for Congress to pass meaningful legislation that cuts global warming pollution and allows the U.S. to exercise global leadership on this issue.
U.S. Issues New Deepwater Drilling Suspension
By Rachel Loftspring
On July 12, Secretary of the Department of the Interior, Ken Salazar, issued a decision memorandum directing a new suspension of certain offshore drilling and permitting activity in the Gulf of Mexico and Pacific regions. This order was made pursuant to 30 C.F.R. § 250.172(b)-(c), which, in pertinent part, provides that suspensions may be ordered when activities “pose a threat of serious, irreparable, or immediate harm or damage” to human or animal “life . . ., property, any mineral deposit or the marine, coastal, or human environment” or “[w]hen necessary for the installation of safety or environmental protection equipment.”
U.S. Chemical Safety Board Investigating Deepwater Horizon Oil Rig Blowout
By Gabrielle Sigel
On June 25, 2010, Congress confirmed the appointments to the two last vacant positions on the U.S. Chemical Safety Board ("CSB"): Dr. Rafael Moure-Eraso, as CSB Chairman; and Mark Griffon, as CSB Member. On June 18, 2010, the CSB also informed Congressmen Waxman and Stupak, of the House Committee on Energy and Commerce, that the CSB intends to investigate the April 20, 2010 Deepwater Horizon oil rig explosion. This investigation is occurring in response to a request made by the Congressmen earlier in June. The CSB, in operation since 1998, is an independent agency charged with investigating industrial chemical incidents. It has no authority to issue fines or citations, but its recommendations are often relied on by other government agencies, industry organizations, and unions.
In its June 18, 2010 letter confirming that the CSB intends to proceed with its investigation of the "root causes" of the Deepwater Horizon incident, then Chairman John Bresland stated that the CSB was uniquely able to assess the incident due to its "past work on BP's culture and corporate safety oversight." In particular, it noted that CSB's investigators of the Deepwater Horizon incident will include those who investigated the March 23, 2005 explosion at BP's Texas City refinery. However, the CSB emphasized that it did not intend to investigate the response to, or the impact of, the Gulf oil spill.
Finally, the CSB informed Congress that to conduct the Deepwater Horizon explosion investigation it would need to rapidly wind down or terminate other investigations, and that it would be requesting additional funding, as needed, from Congress. The CSB noted that the investigation of the Texas City refinery incident alone cost the agency approximately $2.5 million. In its letter, the CSB did not inform Congress of any target date for the conclusion of its Deepwater Horizon investigation.
Additional Greenhouse Gas Reporting Requirements Imposed
By Gabrielle Sigel
Supplementing the greenhouse gas ("GHG") reporting regulations issued in October 2009, on June 28, 2010, U.S. EPA imposed annual reporting requirements on four additional GHG sources: underground coal mines; industrial water treatment systems; industrial waste landfills; and magnesium production facilities. The magnesium facilities' principal GHG emission of concern is sulfur hexafluoride, which has been reported as having a global warming potential of 22,800 times that of carbon dioxide ("CO2"). The other three new reporting sources have methane as their principal GHG emission. Methane has 20 times the global warming potential of CO2. These four new source categories must begin collecting emissions data on January 1, 2011, and submit their first annual reports to the EPA on March 31, 2012. EPA's final rule on the new source categories for GHG reporting can be found here. EPA's October 2009 rule requiring GHG reporting can be found here.
CERCLA UAOs Deemed Constitutional
By Steven M. Siros
On June 29, 2010, the United States Court of Appeals for the District of Columbia affirmed a district court's grant of summary judgment in favor of the United States Environmental Protection Agency ("U.S. EPA") in General Electric Company v. Jackson. In a case that was originally filed in 2000, General Electric challenged U.S. EPA's use of unilateral administrative orders ("UAOs") to compel parties to remediate contaminated properties as being violative of the Fifth Amendment's due process clause. More specifically, General Electric argued that the issuance of a UAO violates the rights of Potentially Responsible Parties ("PRPs") to due process, because a PRP cannot challenge an UAO until after the remedial work required by the UAO has been performed. As a result, according to General Electric, the UAO process, in violation of the Fifth Amendment, deprives the PRP of two types of protected property interests: (1) the money that a PRP must spend to comply with the UAO or face the threat of daily fines and treble damages for non-compliance and (2) an impaired market and brand value, and an impaired ability to obtain financing, all of which, General Electric argued, were a result of the issuance of an UAO. Because the UAO process does not afford a party the right to seek judicial review prior to carrying out the order, General Electric contended that CERCLA's UAO provisions violated the due process clause.
Promoting Transparency for Nanomaterials
By James A. Vroman
On June 25, 2010, the Government Accountability Office (GAO) published a report entitled Nanotechnology: Nanomaterials Are Widely Used in Commerce, but EPA Faces Challenges Regulating Risk (See GAO Report). In this report, the GAO notes that companies are increasingly using nanoparticles in the products they manufacture and that industry is diligently conducting research and development in new and innovative ways to incorporate nanoparticles into new materials and products that will reach the market in the not-to-distant future. The GAO acknowledges that the body of research on nanomaterials is growing. However, at the same time, the GAO notes that little is known about the risks nanomaterials pose to human health and the environment. As a result, the GAO strongly encourages the U.S. EPA to expand and improve its efforts to collect data and information on nanomaterials so that it may effectively regulate the manufacture and distribution of products containing nanoparticles.
May 2010 Update: Climate Change
By Gabrielle Sigel and Jennifer Cassel
Gabrielle Sigel and Jennifer Cassel, attorneys in Jenner & Block's Environmental, Energy & Natural Resources Law Practice, recently posted to Jenner & Block's Climate Change Update Resource Center their May 2010 Update of Climate Change developments. Of note in the May update are discussions of the Kerry/Lieberman draft climate legislation in the Senate and of EPA's finalization of its greenhouse gas "tailoring rule" for stationary sources. Click here to read the May 2010 Climate Change Update.
OSHA Implements Severe Violators Enforcement Program
By Gabrielle Sigel
On June 18, 2010, OSHA implemented its Severe Violators Enforcement Program ("SVEP") against employers who have "demonstrated indifference" to OSH Act compliance. (Click here to read OSHA's SVEP Instruction in its entirety.) The OSHA Instruction describing the program, CPL 02-00-149, replaces OSHA's Enhanced Enforcement Program, which was first announced in 2003.
An employer is deemed to qualify as one who has demonstrated indifference if any of the following criteria are met:
Inadequate Superfund Monies May Result in New Trust Fund Taxes
- Fatality or catastrophe (3+ employees hospitalized) after one or more willful or repeat violations or a failure to abate a serious violation.
- Two or more willful, repeat or failure-to-abate violations based on high gravity serious violations of a "High-Emphasis Hazard." A High-Emphasis Hazard includes fall hazards in all industries and amputation, combustible dust, crystalline silica, lead, excavation/trenching, and shipbreaking hazards as covered by OSHA National or Special Emphasis Programs.
- Three or more willful, repeat, or failure-to-abate violations based on high gravity serious violations related to hazards from the release of a highly hazardous chemical, as defined in the Process Safety Management Program, 29 CFR § 1910.119.
By E. Lynn Grayson
According to a General Accountability Office report issued June 22, 2010, EPA’s estimated costs to remediate existing Superfund sites exceed current funding levels. Moreover, given that EPA anticipates adding about 20 to 25 sites each year to the Superfund’s National Priorities List, funding shortfalls may be even more significant. In a hearing before the Senate Environment and Public Works Subcommittee on Superfund, Toxics and Environmental Health, EPA asked Congress to reinstate a series of taxes that had financed the Superfund Trust Fund but which expired in 1995. The Superfund Trust Fund was used to cleanup sites for which no responsible party could be identified or in cases where the party was insolvent.
These taxes on oil and chemical producers and importers were part of the original Superfund law but such funds were exhausted in 2003. Since that time, EPA’s funding for the cleanup of orphan sites has come from general revenues.
Sen. Frank Lautenberg (D-N.J.) has introduced a bill, the Polluter Pays Restoration Act (S. 3164), that would reinstate these taxes. Sen. James Inhofe (R-Okla.) believes the Obama administration is taking advantage of the political climate arising from the BP oil spill to attempt to reimpose these taxes on oil and gas companies. According to Sen. Lautenberg, however, it's all about the cleanup statistics. EPA cleaned up an average of 80 sites a year while funding existed. Last year, EPA only remediated 19 sites.
More information is available in the GAO report titled EPA’s Estimated Costs to Remediate Existing Sites Exceed Current Funding Levels, and More Sites Are Expected to Be Added to the National Priorities List. Click here for GAO report.
Court Grants Preliminary Injunction Blocking Deepwater Oil Drilling Moratorium
By Allison Torrence
On June 22, 2010, Judge Martin Feldman, of the U.S. District Court for the Eastern District of Louisiana, issued a preliminary injunction blocking the Obama Administration’s moratorium on deepwater oil drilling. The lawsuit, Hornbeck Offshore Services, LLC, et al. v. Salazar, et al., Case No. 10-1663, was originally brought by a company that owns a fleet of vessels that support deepwater oil exploration in the Gulf of Mexico. Additional vessel owners and companies that otherwise support offshore exploration and drilling joined the case as plaintiffs soon after it was filed. After the plaintiffs’ filed a motion for preliminary injunction, several environmental organizations, including the Sierra Club, intervened as defendants supporting the government’s position.
May 2010 Update: Environmental Lender Liability
By Gabrielle Sigel and Genevieve Essig
Gabrielle Sigel and Genevieve Essig, attorneys in Jenner & Block's Environmental, Energy & Natural Resources Law Practice, recently posted to Jenner & Block's Environmental Cost Recovery & Lender Liability Update Resource Center their May 2010 Update of Environmental Cost Recovery developments. Of note in this month's update are summaries of the 9th Circuit's June 2 decision in U.S. v. Aerojet Gen. Corp. and the U.S. District Court of New Jersey's May 26 decision in Raritan Baykeeper, Inc. v. NL Indus.
Click here to read the May 2010 Environmental Cost Recovery & Lender Liability Update.
OSHRC Refuses to Find Asbestos Exposure a Serious OSH Act Violation
By Gabrielle Sigel
In Secretary of Labor v. ConocoPhillips Bayway Refinery, OSHRC No. 07-1045 (June 15, 2010), the Occupational Safety & Health Review Commission ("OSHRC") modified the judgment of an Administrative Law Judge ("ALJ") who had affirmed OSHA's citation of violations of the asbestos regulations as "serious violations." (Click here to read OSHRC's Decision and Order) In this case, Conoco employees were working in an underground pipeline when they chipped and cut through tar-like material containing asbestos at between 2 to 25%. OSHA found that Conoco had violated the "asbestos in construction" standard, 29 CFR § 1926.1101. OSHA characterized all of the violations as "serious," and the ALJ affirmed that characterization and assessed a penalty of $1,875 for each of the nine cited items.
OSHRC reversed the "serious" characterization, finding that OSHA had not proven that the 20-30 minutes of work on the coating around a pipe sleeve "could have generated, and exposed Conoco employees to, a harmful amount of asbestos." OSHRC Opinion at p. 3. The employees were found to be doing Class II asbestos work, which is "not presumed to generate any particular level of asbestos." Id. at p. 4.
Given that the Secretary of Labor had failed to introduce "case-specific evidence" of an exposure to a harmful amount of asbestos, OSHRC changed the violations' characterization to "other-than-serious" and reduced the penalty to $350 per violation.
The Illinois LUST Program Is Amended
By James A. Vroman
On June 8, 2010, Illinois Governor Pat Quinn signed into law Public Act 096-0908, which amended the Illinois Environmental Protection Act's "Leaking Underground Storage Tank" program. The amendments to the LUST program included an expanded incorporation of the Tiered Approach to Corrective Action Objectives ("TACO") into the LUST program, a reduction of the deductible to $5000 to qualify for reimbursement under the program, and new bidding requirements an owner of a LUST must follow to qualify for program. The amendments also implemented measures to stabilize the funding for the LUST program, to provide funding for legacy LUST sites and to create opportunities for owners/operators, who had received No Further Remediation letters, to access the LUST fund in the event additional remediation measures had to be performed.