Environmental and Sustainability Law Archives

Jan 2, 2018

OSHA’s Silica Exposure Standard Upheld on Most Grounds

On Friday, December 22, the U.S. Court of Appeals for the District of Columbia Circuit ruled on challenges to OSHA’s new silica exposure standard, rejecting all challenges by industry and one of the challenges by labor unions, but finding that OSHA was arbitrary and capricious in failing to offer good reasons for not including “medical removal protection” allowing doctors to recommend removal of workers at risk from silica exposure. North America’s Building Trades Unions v. Occupational Safety and Health Administration, case #16-1105, D.C. Cir. 12/22/2017. In its ruling, the D.C. Circuit also: Upheld the Silica Exposure Standard’s reduced Permissible Exposure… Read more

Dec 13, 2017

Federal Circuits Are Split on When a CERCLA Section 113 Contribution Claim Can Be Pursued

The 9th Circuit Court of Appeals recently reinforced a Circuit split on what kind of settlement agreement allows a claimant to pursue a contribution claim against other PRPs under Section 113(f)(3)(B) of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). In Asarco v. Atlantic Ritchfield, (9th Cir. 8/10/17), the Court held that Congress did not intend to limit Section 113(f)(3)(B) contribution actions to the recovery of costs incurred in response actions under CERCLA settlements. Non-CERCLA settlements, such as for implementation of corrective measures under the Resource Conservation and Recovery Act (RCRA), may provide the necessary predicate for a CERCLA… Read more

Dec 4, 2017

Supreme Court to Hear Arguments in Solar Power Dispute

The Supreme Court of the United States announced on Friday, December 1 that it would hear an Arizona utility’s appeal of a Ninth Circuit Court of Appeals decision[1] ruling that a rooftop solar company’s antitrust lawsuit against the utility may move forward. SolarCity, a wholly owned subsidiary of Tesla Motors, sued Salt River Project, a utility regulated by Arizona, over the utility’s 2015 decision to charge a fee for solar power systems operated by individuals, many of which are installed by SolarCity. In the lawsuit, SolarCity claimed that these fees were implemented to make rooftop solar systems too expensive to… Read more

Nov 29, 2017

EPA Fails to Designate Nonattainment Ozone Counties

On November 6, 2017, the United States Environmental Protection Agency (“EPA”) announced which counties in the United States currently meet the more stringent 2015 ozone standards, but failed to announce counties which do not meet the new standards. An estimated 15% of all counties in the U.S. do not meet the new ozone standards; however, without a formal designation by the EPA, states cannot begin to amend their state implementation plans (“SIPs”) for those counties to bring them into compliance with the 2015 standards. Depending upon the severity of the nonattainment, the designation could lead to new pollution control requirements… Read more

Nov 15, 2017

EPA Proposes Repeal of the Clean Power Plan

On October 16, 2017, EPA proposed repeal of the Clean Power Plan (“CPP”), more formally known as the “Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electrical Generating Units.” The CPP aims to reduce carbon dioxide emissions from electrical power generation by 32 percent by 2030, relative to 2005 levels, through emissions standards for fossil fuel-fired power plants and corresponding emissions goals for each state. EPA will hold a public hearing on the proposed repeal on November 28-29, 2017 in Charleston, West Virginia. On November 8, 2017, EPA extended the deadline for public comment on the proposed repeal to January… Read more

Nov 1, 2017

EPA Enforcement Action Signals Heightened RMP Oversight

In August, EPA announced a Consent Order with ChemArt Company of Lincoln, Rhode Island to correct alleged violations of EPA’s Risk Management Program (RMP) under the Clean Air Act. The Consent Order included a civil penalty of $221,326 and a supplemental environmental project (SEP) requiring ChemArt to reduce its stockpile of hazardous materials, including chlorine, and to update manufacturing equipment to reduce the likelihood and consequences of a release. In the waning days of the Obama Administration, EPA issued a final rule updating the RMP and imposing new requirements. On June 14, the Trump Administration EPA issued a final rule… Read more

Oct 26, 2017

Federal Court in Rhode Island Invalidates Superfund Unilateral Administrative Order

Map: Centredale Manor Restoration Project Superfund Site in North Providence, Rhode Island

The U.S. District Court for the District of Rhode Island has agreed with a PRP that portions of a Unilateral Administrative Order (UAO) for cleanup of the Centredale Manor Restoration Project Superfund Site in North Providence, Rhode Island were arbitrary and capricious. Emhart Industries, Inc. v. New England Container Company, Inc., et al, (August 17, 2017). Although normally, review of a UAO is confined to the administrative record, the Court agreed with a PRP that refused to comply with the UAO that expert testimony outside the administrative record should be considered. After considering the outside expert testimony, the Court concluded… Read more

Oct 16, 2017

EPA Initial Rules Under TSCA Amendments Challenged in Court

Toxic Substances Control Act: BioHazard labels

EPA issued several final rules to implement the recent bipartisan amendments to the Toxic Substances Control Act (TSCA) on June 22. The final rules included regulations on how it will prioritize chemicals as either high or low priority for review, and how it will evaluate high priority chemicals. Several lawsuits were filed challenging the rules. The lawsuits were consolidated in the 4th and 9th Circuits Courts of Appeals. A separate lawsuit was filed in the D.C. Circuit Court of Appeals. One of the principal issues in the lawsuits will be the exclusion from EPA review of certain categories of uses of… Read more

Oct 10, 2017

TVA Appeals U.S. District Court Order for Removal of Coal Ash

The TVA has asked the U.S. Court of Appeals for the Sixth Circuit to review an August 4 Order by the U.S. District Court for the Middle District of Tennessee to dig up and remove coal ash from its Gallatin, Tennessee site. In response to a lawsuit filed by conversation groups in April of 2015, the U.S. District Court agreed that violations of the Clean Water Act mandated “closure by removal” of the coal ash. According to the TVA, the estimated cost to dig up and move the coal ash from its current location is $2 billion. TVA officials have… Read more

Oct 4, 2017

OSHA’s Enforcement of the Respirable Crystalline Silica in Construction Standard: What to Expect

On September 23, 2017, the Occupational Safety and Health Administration (“OSHA”) began enforcement of the new respirable crystalline silica in construction standard, codified at 29 CFR § 1926.1153. This standard establishes a new 8-hour time-weighted average Permissible Exposure Limit (“PEL”) of 50 μg/m3, an action level of 25 μg/m3, and a “host of ancillary requirements.” In a recent letter of interpretation, Thomas Galassi, Acting Deputy Assistant Secretary to OSHA Regional Administrators, announced that for the first thirty (30) days of enforcement, “OSHA will carefully evaluate good faith efforts taken by employers in their attempts to meet the new construction silica standard.”… Read more