Another Circuit Allows Non-Settling PRPs to Intervene in CERCLA Consent Decree Action
By Genevieve Essig and Gabrielle Sigel
On June 2, 2010, the U.S. Court of Appeals for the Ninth Circuit held that a non-settling PRP's right to contribution under CERCLA was a legally sufficient interest to justify intervention to challenge a proposed consent decree between the federal government and the settling PRPs, joining ranks with the Eighth and Tenth Circuits, the only other U.S. appellate courts to address the issue. The case is U.S. v. Aerojet Gen. Corp., No. 08-55996 (9th Cir. Jun. 2, 2010).
OSHA Moves on Walking-Working Surfaces Revisions . . . Again
By Andi S. Kenney
On May 24, OSHA published a proposed rule to amend its walking-working surfaces and personal protective equipment standards, Subparts D and I of the General Industry Standards. The proposed revisions are intended to reduce the number of workplace injuries and fatalities due to slips, trips and falls by requiring the use of updated technologies and current industry practices. Among other changes, the revisions in Subpart D would require employers to provide fall protection to all employees working at heights of four feet or more and would establish specific requirements for the fall protection system used. Revisions to Subpart I would establish criteria and performance requirements for the use of personal fall protection systems.
The revisions would also make general industry requirements more consistent with those in the construction and maritime industries. Like the construction standard, the proposed rule would eliminate the preference for guardrails and would, instead, permit employers to choose from one of several conventional fall protection systems (guardrail systems, safety net systems, travel restraint systems, and personal fall protection systems) or non-conventional means, such as establishing designated areas for work, provided established criteria are met.
This new proposed rule supersedes the proposal published in the Federal Register on April 10, 1990 (55 FR 47660) and republished on May 2, 2003 (69 FR 23528) but retains many of its provisions. One notable difference, however, is that the recent proposal eliminates the option to designate qualified climbers, except in outdoor advertising. OSHA seeks additional comment on that issue as well as on the application of the rule to rolling stock and motor vehicles, fall protection on stacked materials, and building anchorages for rope descent. Comments are due by August 23, 2010.
The proposed rule is published at 75 FR 28862. At 291 pages, it is broken up into six parts that can be found Part 1, Part 2, Part 3, Part 4, Part 5 and Part 6.
EPA Says Formaldehyde Causes Cancer
By E. Lynn Grayson
EPA announced the release of the draft Toxicological Review of Formaldehyde – Inhalation Assessment in the June 2, 2010 Federal Register. EPA found that the chemical, present in a wide variety of consumer products, causes cancer when inhaled. The new findings also conclude that formaldehyde could be up to five times more likely to cause cancer in people than the EPA calculated in 1989 when it classified the chemical as a probable human carcinogen. The Centers for Disease Control and Prevention estimates that U.S. residents typically are exposed to daily formaldehyde concentrations of 10 ppb to 30 ppb indoors. By comparison, EPA’s draft assessment proposes candidate reference concentrations for this chemical ranging from 4 ppb to 9 ppb.
The Formaldehyde Council, Inc. (“FCI”), a non-profit association that represents the leading producers and users of formaldehyde in the U.S., disagrees with EPA’s findings in the draft report. FCI plans to submit additional comments detailing the industry’s position and welcomes the further review to be conducted by the National Academy of Sciences.
EPA seeks public comments on this draft assessment through July 31st. EPA has scheduled a public listening session that will be held on July 27th.
Fifth Circuit Dismisses Hurricane Katrina Climate Change Appeal
By Gabrielle Sigel
On May 28, 2010, in Comer v. Murphy Oil U.S.A, the U.S. Circuit Court of Appeals for the Fifth Circuit issued an order dismissing the appeal of a climate change nuisance case involving the effects of Hurricane Katrina. Comer v. Murphy 5th Cir. Order May 26 2010.The Fifth Circuit’s order, in effect, reinstates the decision of the U.S. District Court, which had dismissed the nuisance complaint filed by plaintiff property owners, who claimed that the greenhouse gas emissions of the defendant energy, fossil fuel-burning, and chemical companies had worsened the impacts of Hurricane Katrina. The Fifth Circuit’s decision is highly unusual and controversial.
CBI Protections for Chemicals May be Lost
By Steven M. Siros
In a May 27, 2010 Federal Register notice, U.S. EPA announced that it will begin reviewing Confidential Business Information ("CBI") claims for health and safety studies submitted under the Toxic Substances Control Act and will reject the CBI claims that do not meet TSCA's requirements for CBI treatment. (TSCA Section 8(e).) U.S. EPA not only will review new submissions but the Agency also intends to reevaluate CBI claims in prior submissions. U.S. EPA will issue determination letters rejecting CBI claims where the health and safety study claimed as containing "Confidential Business Information:" (1) does not explicitly contain process information or (2) does not reveal data disclosing the portion of the mixture comprised by any of the chemical substances in the mixture. This action is part of U.S. EPA’s continuing efforts to make available to the general public information the relevant studies that assess the health and safety risks of chemicals. To review the federal register notice, please click here.
April 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 April 2010 Update of Climate Change developments. Of particular note in this month's update are: (1) on April 1, 2010, EPA and DOT jointly issued issue standards for vehicle fuel economy; and (2) an environmental group and a Texas coal-fired power plant reached an agreement to capture and sequester 85% of the plant’s carbon dioxide emissions. Click here to read the April 2010 Climate Change Update.
Feds Invest $836M To Redevelop 90 Abandoned GM Sites
By E. Lynn Grayson
The White House Council on Auto Communities and Workers announced this week the largest remediation trust agreement in U.S. history will be invested as part of the federal framework to create momentum to put 90 facilities back into productive use, thus creating jobs and economic growth in communities in 14 states. In total, $836M will be invested to speed the environmental cleanup and redevelopment of these former GM auto facilities shuttered as part of the General Motors Corporation bankruptcy. The plan remains subject to the approval of the U.S. Bankruptcy Court for the Southern District of New York.
The framework would place more than $800M in federal funding, which had been provided for the wind-down of the Old GM, in an Environmental Response Trust. The proposed allocation would provide $536M for the cleanup of these former sites and approximately $300M will be used to assist the states and communities in dealing with the challenges these properties present, including property taxes, demolition costs, plant security costs and others expenses.
More information is available at http://www.whitehouse.gov/the-press-office/council-auto-communities-and-workers-announces-landmark-framework-speed-redevelopme
Environmental Group Sues Department of Interior Over Offshore Drilling Approval
By Allison A. Torrence
On May 17, 2010, Defenders of Wildlife filed a lawsuit against the Minerals Management Service (“MMS”), the Department of the Interior (“DOI”) and Ken Salazar, Secretary of the Interior, in Federal District Court. The lawsuit alleges that MMS, DOI and Salazar violated the National Environmental Policy Act (“NEPA”) when MMS approved BP’s Exploration Plan for the Deepwater Horizon exploratory drilling operation (“Deepwater Horizon Plan”). Deepwater Horizon is the site of the April 20, 2010, explosion and continuing release of oil into the Gulf of Mexico.
Under NEPA, federal agencies must prepare an Environmental Impact Statement (“EIS”) for all “major Federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C). The NEPA regulations allow for a “categorical exclusion” for categories of actions which “do not individually or cumulatively have a significant effect on the human environment.” 40 C.F.R. § 1508.4. Defenders of Wildlife is alleging that MMS violated NEPA by granting a categorical exclusion from NEPA review to BP’s Deepwater Horizon Plan, thereby bypassing the EIS requirement. Defenders of Wildlife also alleges that since the explosion at the BP Deepwater Horizon site on April 20, 2010, MMS has granted over twenty categorical exclusions from NEPA review for other exploratory wells and drilling operations in the Gulf of Mexico.
Click here to view the Defenders of Wildlife complaint.
U.S. EPA Adds Chemicals and Facilities to Envirofacts Database
By Steven Siros
On May 17, 2010, U.S. EPA announced that it was adding more than 6,300 chemicals and 3,800 chemical facilities regulated under the Toxic Substances Control Act (“TSCA”) to U.S. EPA public database “Envirofacts”. The Envirofacts database is a publicly available database that provides a single point of access for information concerning environmental activities affecting air, water and land at facilities throughout the United States. http://www.epa.gov/enviro/. Information available on the database includes facility names and addresses, aerial facility images, and links to other U.S. EPA databases such as the Enforcement Compliance History Online database. These steps are being taken by U.S. EPA as part of Administrator Jackson’s commitment to increase public access to information on chemicals. See http://www.epa.gov/oppt/existingchemicals/pubs/enhanchems.html for further information concerning this U.S. EPA initiative.
DOT Proposes Modifications to Packaging Requirements for Air Transport of Liquids
By Steven M. Siros
On May 14, 2010, the Department of Transportation issued a notice of proposed rulemaking that would impose new packaging requirements on the transport of liquids by air. Packing Group I liquids would require a secondary means of closure, absorbent materials and a rigid, leakproof liner or intermediate packaging. Packing Groups II and III liquids would be able to satisfy the secondary closure requirements through use of a leakproof liner if it can be demonstrated that a secondary closure cannot be applied or is impracticable. Comments on the notice must be submitted by July 13, 2010.
Click here to see Federal Register Rule-Making Notice.
April 2010 Update: Environmental Lender Liability
By Gabrielle Sigel and Genevieve Essig
U.S. EPA Finalizes GHG Stationary Source Permitting Rule
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 April 2010 Update of Environmental Cost Recovery developments. Of note in this month's update are "Third Circuit Addresses 'Still Developing' Relationship Between CERCLA Cost Recovery and Contribution Actions" and "City’s RCRA Lawsuit Against United States Defense Agency Barred by CERCLA § 113(h)."
Click here to read the April 2010 Environmental Cost Recovery & Lender Liability Update.
By Gabrielle Sigel
On May 13, 2010, U.S. EPA announced that it had finalized its “Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule,” which prescribes how Clean Air Act (“CAA”) permitting requirements are applied to stationary sources of greenhouse gas (“GHG”) emissions. The rule “tailors” the application of the CAA’s Prevention of Significant Deterioration (“PSD”) and Title V permitting requirements so that only stationary sources of a large amount of GHG emissions are required to obtain permits. Such permits must demonstrate the use of best available control technologies (“BACT”) applied to GHG emission points. The application of the final rule is more “tailored” than EPA’s original September 2009 proposal, in that the final rule’s triggering emission amount is a minimum of 75,000 tons per year (“tpy”), not the 25,000 tpy trigger originally proposed.
Senators Kerry and Lieberman Announce New Climate Change Bill
By Gabrielle Sigel
On the afternoon of May 12, 2010, U.S. Senators Kerry (D‑MA), and Lieberman (I‑CT), jointly introduced their “discussion draft” of the American Power Act (“the APA”), as a Senate version of comprehensive climate change regulation. The U.S. House of Representatives passed its comprehensive climate change bill, the Waxman-Markey, American Clean Energy and Security Act, H.R. 2454, in June 2009. The Kerry-Lieberman bill is the result of negotiations ongoing since Fall 2009, attempting to develop a bipartisan climate change bill, with support from both industry and environmental groups. The 987-page bill unveiled on May 12 intends to reduce U.S. industry-wide GHG emissions from a 2005 baseline by 17% in 2020 and by 80% in 2050, through a cap-and-trade scheme. As currently structured, the APA has six substantive, somewhat overlapping, sections.
OSHA States Policy RE Training In Foreign Language
By Gabrielle Sigel
In an April 28, 2010, memorandum to all OSHA Regional Administrators, Dr. David Michaels, Assistant Secretary of Labor for Occupational Safety & Health, reiterated OSHA’s policy that employee training must be conducted in a manner that employees can understand. Many OSHA standards explicitly require training and some require that employees acquire knowledge about a particular issue, but none specify the language in which the training must be provided.
OSHA Implements “Enhancements” To Penalty Policies
By Gabrielle Sigel
On April 22, 2010, Dr. David Michaels, Assistant Secretary of Labor for Occupational Safety & Health, after finding that OSHA’s penalties were too low to have an “adequate deterrent effect,” issued a memo to OSHA Regional Administrators implementing changes to the penalty calculation system to be used in OSHA inspections and enforcement actions. The changes will be published in OSHA’s Field Operations Manual and will go into effect over the next several months.