OSHA Holding Talks RE Injury and Illness Prevention Program Rule
By Gabrielle Sigel
The U.S. Occupational Safety & Health Administration (‘OSHA”) announced on May 4, 2010, that it will be holding three stakeholder meetings at various sites in June to promote a discussion by registered participants on OSHA’s development of a proposed Injury and Illness Prevention Program (“I2P2”) rule. OSHA seeks to use these discussions to gather information for an I2P2 rule “that will help employers reduce workplace injuries and illnesses through a systematic process that proactively addresses workplace safety and health hazards.” 75 Fed. Reg. 23638. David Michaels, Assistant Secretary of Labor for Occupational Safety & Health, has stated publicly that an I2P2 rule could be used to ensure that an employer is identifying all hazards, including ergonomic and chemical hazards. Notably, OSHA was prevented by Congressional action from implementing a rule directly regulating ergonomic hazards.
OSHA Publishes Regulatory Agenda Update
By Gabrielle Sigel
On April 26, 2010, OSHA issued its Spring 2010 semiannual regulatory agenda. The agenda includes announcement of two new actions: development for an Injury and Illness Prevention Program (“I2P2”) rule and modernizing OSHA’s recordkeeping reporting systems, which will include the use of electronic recordkeeping. OSHA’s agenda also schedules that by July 2010, OSHA will issue a final rule on recording musculoskeletal disorders and a final rule on cranes and derricks in construction, including operator training and certification. In this regulatory agenda, OSHA withdrew its rulemaking on hearing conservation for construction workers and delayed or continued its schedule on other potential rules.
Click here for OSHA’s Spring 2010 Regulatory Agenda.
GHG Reporting Regulations Snag Four Additional Industrial Sectors
Under a draft final rule that U.S. EPA sent to the White Office of Management and Budget for interagency review on April 30, 2010, the following source categories will now be included in the list of industrial sectors that are required to report their greenhouse gas emissions: industrial landfills, wastewater treatment facilities, underground coal mines, and magnesium production facilities. These industrial sectors had originally been included in the proposed rule issued in April 2009 but were subsequently excluded from the October 2009 final rule. The rule would apply to sources in these industrial sectors that emit in excess of 25,000 tons of carbon dioxide-equivalent GHGs. http://www.reginfo.gov/public/do/eAgendaViewRule?pubId=201004&RIN=2060-AQ03
Big Changes in Store for TSCA
By James A. Vroman
According to U.S. EPA, these four sectors had been excluded from the final rule in order to give the agency time to review and respond to public comments it received on that rule after it was proposed. However, U.S. EPA has now determined that the requirements for these four sectors do not need to be reproposed and that the rule that was originally proposed in April 2009 would become final. U.S. EPA has not yet indicated whether sources in these industrial categories will be required to report 2010 GHG emissions. A copy of the April 2009 draft rule can be found at http://www.epa.gov/climatechange/emissions/archived/downloads/Preamble_E9-5711.pdf
Congress enacted the Toxic Substances Control Act ("TSCA") in 1976 amid much fanfare. Ostensibly, the Act gave the U.S. EPA authority to regulate chemicals manufactured in, or imported into, the United States with the goal of banning or restricting the use of chemicals that could pose an unacceptable risk to human health or the environment. However, from the date of its enactment, the "authority" the Agency had to regulate the manufacture or importation of chemicals under TSCA was severely limited and restricted. See, High Risk Series: An Update. GAO-09-271. Washington, D.C.: Jan. 22, 2009, at pp. 22-23.
Carbon Disclosure Project Confirms That Current Greenhouse Gas Trends Will Not Meet Obama's US Reduction Targets
By E. Lynn Grayson
The Carbon Disclosure Project's (CDP) latest report shows that the trends in US greenhouse gas emissions are not on track to meet President Obama's 2020 reduction target for the United States. According to the report, CDP has evaluated annual information collected from S&P 100 companies for the years 2007-2009 and found that the greenhouse gas emissions will, at their current trajectory, produce a 3.66% absolute increase in emissions by 2020, relative to 2009 levels.
In November, 2009, President Obama committed to a 17% absolute reduction in emissions by 2020, measured against a 2005 baseline. While not yet legally binding, this commitment represents a crucial change in the US position on climate change. On a related note, the Intergovernmental Panel on Climate Change (IPCC) has recommended a 80% reduction by 2050.
The CDP is an independent not-for-profit organization holding the largest database of corporate climate change information in the world. A copy of the CDP report addressing current US emissions trends is available at http://www.cdproject.net
Office of EPA Inspector General Says Updated Final Vapor Intrusion Guidance Needed
By E. Lynn Grayson
Henry Schuver, Ph.D., EPA RCRA Corrective Action Office, recently speaking about vapor intrusion affecting site remediation and redevelopment projects at the "Sustainable Property Transactions: Retooling The Business of Contaminated Sites Redevelopment" program held in Philadelphia, addressed the status of the Agency's guidance in this area. He advised that EPA hopes to finalize guidance on vapor intrusion by the end of 2012. More important, EPA anticipates release of an interim guidance document yet this year. These efforts appear to be prompted, in part, by the December 14, 2009 report from the EPA Office of Inspector General "Lack of Final Guidance on Vapor Intrusion Impedes Efforts to Address Indoor Air Risks."
The report highlighted the concerns with the 2002 draft vapor intrusion guidance noting it has limited purpose and scope. The report recommended that EPA issue final guidance on the evaluation and mitigation of vapor intrusion risks, including final toxicity values for TCE and PCE.
The EPA Office of Inspector General report is available at http://www.epa.gov/oig/reports/2010/20091214-10-P-0042.pdf
Equipment Lessor Deemed An "Owner" Under CERCLA: Liable For Remediation Costs
By James A. Vroman and Genevieve J. Essig
A recent decision from the United States District Court for the Northern District of Illinois has provided a new perspective on who could be held liable for a release of hazardous substances as an “owner” under CERCLA. See United States v. Saporito, No. 07-C-3169 (N.D. Ill. Feb. 9, 2010). In a February 9, 2010 decision, the Honorable Rebecca R. Pallmeyer found an owner of equipment leased for use in an electroplating operation to be a “current owner” within the meaning of CERCLA, which resulted in his being liable for the $1.5 million U.S. EPA had expended to remove hazardous liquids and sludge from the former site of the electroplating business.
Partners in Pollution Report More Emissions Come From Canadian Facilities
By E. Lynn Grayson
Who Knew? A recent report by the Pollution Watch, a joint initiative between the Canadian Environmental Law Association and Environmental Defense, reveals that Canadian facilities had greater releases of cancer-causing pollutants than U.S. companies. Comparing 2007 TRI data and Canada's National Pollutant Release Inventory data, Canadian companies, on average, emitted three times more pollutants than American companies on a per facility basis. Formaldehyde and mercury compound releases also are much higher from Canadian facilities. There is some positive news--overall, there has been a decrease in releases to the Great Lakes-St. Lawrence River basin since 2003 when similar data was last reviewed and compared.
These findings are discussed in greater detail in a document titled "The Partners in Pollution 2 Report" now available at http://www.cela.ca/collections/water/pollutionwatch-great-lakes-reporting
Inter-American Commission on Human Rights Allows Complaint By Mossville, LA Residents
By E. Lynn Grayson
The Inter-American Commission on Human Rights ruled in favor of admitting a human rights complaint on behalf of Mossville, LA residents. The decision marks the first time, according to Advocates for Environmental Human Rights, that the Commission has taken jurisdication over an environmental racism case in the U.S.
The Commission is an entity of the Organization of American States (OAS) of which the U.S. is a member. Mossville is an historic African-American community in southwest Louisiana that is surrounded by fourteen industrial facilities.
More information about this case and related environmental claims is available at http://www.ehumanrights.org/
March 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 March 2010 Update of Climate Change developments. Of particular note in this month's update are: (1) an announcement by EPA’s Administrator that GHG emissions requirements for stationary sources are to begin in 2011; and (2) the involvement of sixteen states in litigation attacking EPA’s endangerment finding for GHGs. Click here to read the March 2010 Climate Change Update.
EPA, DOT Issue Joint Standards for Vehicle Fuel Economy, GHG Emissions
By Jennifer Cassel
On April 1, 2010, EPA and the Department of Transportation (“DOT”) released joint fuel economy and the first ever greenhouse gas (“GHG”) emission limits for 2012-2016 model year light-duty vehicles, mandating that those vehicles decrease CO2 emissions each year until they achieve a combined average of 250 grams of CO2 per mile for model year 2016 vehicles. 75 Fed. Reg. 25324. Under the new standards, vehicles may decrease their CO2 emissions either by improving fuel economy or by taking other GHG-reduction measures, such as cutting leaks of hydroflourocarbons (HFCs) from vehicle air conditioning systems. If all of the vehicles’ CO2reductions come from improved fuel economy, they would achieve an average fuel economy of 35.5 miles per gallon by model year 2016. EPA estimates that the new standards will decrease GHG emissions by approximately 960 million metrics tons over the lives of each of the covered 2012-2016 vehicles. The standards result from the May 2009 agreement among EPA, DOT, the state of California and other entities, discussed in the May 2009 issue of GE Climate Change EWS. The final standards were published in the May 7, 2010 issue of the Federal Register.
The final rule is available at http://edocket.access.gpo.gov/2010/pdf/2010-8159.pdf
Bills Would Provide Incentives for Development of Off-Shore Wind Energy
By Jennifer Cassel
On April 19, 2010, Sen. Sherrod Brown (D-Ohio), along with Senators Ted Kaufman (D-Del.), Tom Caper (D. Del), Susan Collins (R-Me) and Olympia Snowe (D-Me), introduced a bill that provides funds to expand research and development (“R&D”) of offshore wind energy resources in the U.S. The bill, titled the “Program for Offshore Wind Energy Research and Development Act of 2010,” or the “POWERED Act of 2010” (S. 3226), would create a grant program for R&D on numerous subjects pertaining to wind energy development, including research of ice formation and other weather-related matters, integration of offshore wind energy into the power grid, impacts of offshore wind development on wildlife, and mooring technologies, among many others. The bill also directs the Secretary of Energy to formulate a “comprehensive roadmap” towards expanding offshore wind energy resources in the U.S., which roadmap would be reported to Congress within 180 days of enactment of the bill. S. 3226 was referred to the Senate Committee on Energy and Natural Resources on April 19, 2010.
S. 3226 is available at http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=111_cong_bills&docid=f:s3226is.txt.pdf
Bills Would Bar Consideration of Climate Change Impacts under NEPA
By Jennifer Cassel
On April 20, 2010, Sen. James Inhofe (R-Okla.) introduced a bill which would prohibit agencies from taking climate change impacts into account when conducting environmental impact evaluations under the National Environmental Policy Act (“NEPA”). Specifically, under Inhofe’s NEPA Certainty Act (S. 3230), “compliance with [NEPA] shall not include consideration of—(1) the greenhouse gas emissions, or any climate change effects of those emissions, of a proposed action and alternative actions; or (2) the relationship of climate change effects to a proposed action or alternatives, including the relationship to proposal design, environmental impacts, mitigation, and adaptation measures.” The bill, co-sponsored by 6 other Republican Senators, also includes a “declaration” that NEPA “should not be used to document, predict, or mitigate the climate effects of specific Federal actions.” The NEPA Certainty Act was referred to the Senate Committee on Environment and Public Works on April 20, 2010.
S. 3230 is available at http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=111_cong_bills&docid=f:s3230is.txt.pdf
CA Court: Refinery Changes Cannot Proceed Without GHG Mitigation Measures
By Jennifer Cassel
On April 26, 2010, the California Court of Appeal of the First Appellate District upheld the injunction prohibiting modifications to Chevron’s Richmond, California oil refinery, holding that the City of Richmond improperly approved permits without requiring measures, mandated by the California Environmental Quality Act (“CEQA”), to mitigate the increased GHG emissions that would result from the refinery’s modifications. Communities for a Better Envt. v. Richmond, Cal. Ct. App., No. A125618 (Apr. 26, 2010). The case dates back to 2005, when Chevron initially proposed the modifications. In July 2008, Richmond approved the permits for the modifications, and issued an Environmental Impact Report (“EIR”) pursuant to CEQA. As part of its approval of the EIR, although Richmond acknowledged that the increase of 898,000 metric tons per year of GHG emissions would have a significant effect on the environment, the only mitigation measure Richmond required was that Chevron prepare a plan, within one year of the permits’ approval, “for achieving complete reduction of GHG emissions up to… 898,000 metric tons per year…,” which plan would be approved by the Richmond City Council. Stating that “the development of mitigation measures, as envisioned by CEQA, is not meant to be a bilateral negotiation between a project proponent and the lead agency after project approval; but rather, an open process that also involves other interested agencies and the public,” the Court held that the mitigation measure “does not satisfy CEQA’s requirements.”
The opinion is available at http://caselaw.lp.findlaw.com/data2/californiastatecases/a125618.pdf?DCMP=ESP-pro_calcases
Industry Files Petition For Review of EPA’s Re-Interpretation of Johnson Memo
By Jennifer Cassel
On April 2, 2010, the same day EPA published its final reinterpretation of the meaning of “subject to regulation” under the Clean Air Act, triggering regulation of GHG emissions from stationary sources in January 2011, several industry groups filed a petition for review of that final EPA action in the United States Court of Appeals for the District of Columbia Circuit. Coalition for Responsible Regulation v. Envtl. Protection Agency, D.C. Cir., No. 10-1073 (filed Apr. 2, 2010). Petitioners, which include the Coalition for Responsible Regulation, Inc., the Industrial Minerals Association-North America, the National Cattlemen’s Beef Association (“NCBA”), Great Northern Project Development, L.P., Rosebud Mining Company and Alpha Natural Resources, Inc., do not specify in their petition why they are requesting review of EPA’s action. However, in a press release issued by petitioner NCBA, NCBA chief environmental counsel Tamara Thies opined that EPA is acting in violation of the Clean Air Act by not issuing a National Ambient Air Quality Standard for GHGs prior to regulating them under the Prevention of Significant Deterioration program for stationary sources. “Before imposing very-real, long-term negative impacts on the entire U.S. economy,” This continues, “the EPA should at least follow Congress’ strict instructions for regulating pollutants under the PSD program.”
The NCBA press release is available at http://www.beefusa.org/NEWSNCBAChallengesEPAsInterpretationofGreenhouseGasPermittingRules40507.aspx.