OSHA Releases New Requirements for Settlement Agreements, Provides Whistleblowers with Additional Protections

The Occupational Safety and Health Administration (OSHA) released new guidance September 9 on settling whistleblower claims under the 22 statutes the agency administers that provide more protections to employees and make it more difficult for employers to end litigation. Continue Reading

Piercing the Corporate Veil Following Breaches of UK Environmental Permits

The recent Court of Appeal decision in R v Powell and Westwood contains an interesting insight into the extent to which company directors may find themselves personally liable for the cost of remediating contamination which has been caused or knowingly permitted by the companies that they control. It has confirmed that the corporate veil should only be pierced in limited circumstances. Continue Reading

NY Appeals Court: Environmental Cleanup Insurer’s Liability Limited to Insured Years

In a case of first impression, Keyspan Gas East Corp. v. Munich Reins. Am., Inc., a New York appellate court reversed a lower court ruling and held that an insured, rather than its environmental cleanup insurer, must be allocated environmental cleanup costs for periods of time when the relevant insurance was not available in the marketplace.  The issue before the court was the proper allocation of the risk of loss from environmental property damage that continued during periods of time when liability insurance was unavailable. The court’s bottom line: “there was no legal basis for providing what would amount to free insurance to the policyholder.” For more details, check out Squire Patton Bogg’s insurance disputes blog post, New York Appeals Court Holds No Allocation of Environmental Losses to Insurers for Uninsured Years, by Larry P. Schiffer.

Ninth Circuit Rules Smelter Emissions Are Not a CERCLA Disposal

The Ninth Circuit’s recent opinion in Pakootas v. Teck Cominco Metals, Ltd., addressed whether, “[w]hen a smelter emits lead, arsenic, cadmium, and mercury compounds through a smokestack and those compounds contaminate land or water downwind, . . . the owner-operator of the smelter [can] be held liable for cleanup costs and natural resource damages under the Comprehensive Environmental Response, Compensation, and Liability Act (‘CERCLA’).”  In its anxiously awaited decision, the Court rejected the plaintiffs’ theory that such aerial emissions constitute an actionable disposal under CERCLA. Continue Reading

New US Standards to Reduce Emissions and Improve Fuel Efficiency of Medium- and Heavy-Duty Vehicles

Front view of truckAs the result of a joint rulemaking effort, the US Environmental Protection Agency’s (US EPA) Office of Transportation and Air Quality and the US Department of Transportation’s National Highway Traffic Safety Administration (NHTSA) finalized new standards for medium- and heavy-duty vehicles and their engines on August 16, 2016. Included among the types of vehicles affected by these changes are vans, pickup trucks, tractors, trailers, semis, buses, and vocational vehicles with a gross vehicle weight rating of 8,500 lbs. or greater.

This new round of regulations, first proposed on June 19, 2015 and published for public comment on July 13, 2015, represents the second of two phases constituting a national program geared toward reducing greenhouse gas emissions and improving the fuel efficiency of medium- and heavy-duty vehicles. The final rules constituting Phase 1 of the national program, published on September 15, 2011, were presented as the “first-ever program to reduce greenhouse gas emissions and improve fuel efficiency of medium- and heavy-duty vehicles.” More information about Phase 1 of the program can be found here. Vehicles built for the model years 2014-2018 were governed by the Phase 1 regulations, whereas Phase 2 focuses on model years 2018-2027 for certain trailers and model years 2021-2027 for semi-trucks, large pickup trucks, vans, and all buses and work trucks.

Phase 2 represents a combined effort by US EPA and NHTSA to advance fuel and emissions standards in accordance with President Obama’s February 18, 2014 directive on improving the fuel efficiency of American trucks. US EPA expects Phase 2 to reduce CO2 emissions by approximately 1.1 billion metric tons and amount to savings of about $170 billion on fuel costs.  Oil consumption is expected to be reduced by up to 2 billion barrels over the lifetime of the vehicles covered by Phase 2.  In a departure from Phase 1, Phase 2 not only bases its standards on currently available technologies, but also contemplates technologies that are still emerging and not yet in widespread use. Continue Reading

Implication of TSCA Amendments on US Workplace and Consumer Safety Regulation

How US EPA assesses and regulates chemicals under the amended Toxic Substances Control Act has a number of implications for workplace and consumer safety regulation. In particular, chemicals regulated under other environmental statutes may bear on US EPA’s plans in this arena. US EPA has not regulated a chemical under TSCA Section 6, which provides for regulation of existing as opposed to new chemicals, since 1989, when it adopted a ban on asbestos which was subsequently overturned by a federal Court of Appeals. This 27-year hiatus appears to be coming to an end, as US EPA has indicated that it expects to propose three such rules by late 2016. In a recent article published in the Bloomberg BNA Chemical Regulation Reporter, Squire Patton Boggs’ partner W. Caffey Norman provides insights on this regulatory inter-relationships as US EPA begins moving forward in the new legal landscape following enactment of the Frank R. Lautenberg Chemical Safety for the 21st Century Act on June 22, 2016.

 

UK Chemicals Regulation Post-Brexit

The British exit from the European Union (Brexit) could significantly impact chemical companies operating within the United Kingdom (UK), depending on the regulatory decisions made by the government.  Post-Brexit, REACH, the European Union’s chemicals regulatory scheme will no longer apply to the UK.  Upon exiting REACH, UK companies exporting to Europe could face substantial extra costs, as they would have to go through the registration process all over again. Squire Patton Boggs’ partner, David Gordon, foreshadows the potential options that the UK has in developing and implementing chemicals regulation post-Brexit in a this ICIS Chemical Business article.

When to Consider “Non-Scope Considerations” in Environmental Due Diligence

Performing thorough environmental due diligence for commercial and industrial property acquisitions requires consideration of diverse risks to a prospective purchaser. Such diligence generally includes a Phase I environmental site assessment performed under ASTM Standard Practice E1527-13 (ASTM E1527-13), which is designed to investigate the possibility of hazardous substance or petroleum product releases at a commercial property—the presence of which can serve as a basis for strict, joint-and-several liability to current and past property owners under the federal Comprehensive Environmental Response, Compensation and Liability Act (CERCLA).

While CERCLA liability is a primary concern to any prospective purchaser of commercial and industrial property, there are a host of other issues that may create liability ranging from exposure risks from building materials and naturally-occurring substances (both exempt from CERCLA), to regulatory non-compliance, to potential tort liability for hazardous conditions. ASTM E1527-13 identifies these issues as “non-scope considerations” that may create a “business environmental risk”—a term the ASTM standard defines as “a risk which can have a material environmental or environmentally-driven impact on the business associated with the current or planned use of a parcel of commercial real estate.” Continue Reading

Supreme Court of Western Australia Rules that State Environmental Policies are Not ‘Relevant Considerations’ when Making an Environmental Impact Assessment

The port City of Fremantle, now considered by many as part of greater Metropolitan Perth, has been home to Fremantle Port since the turn of the 19th Century. For more than a century, 90% of Western Australia’s imports and 30% of its exports have moved through the port.

In 2014, during their first budget, the Abbott Federal Government allocated federal funding supplemented by state funding to upgrade and expand Roe Highway, in order to improve access to and from Fremantle for heavy vehicles transporting freight. Since announcing the election promise, the first stage of the project (known as ‘Roe 8’) has been shrouded in controversy. The arguments opposing the project are many and varied, spanning aboriginal heritage issues, to the compulsory acquisition of residential land. One point of interest for environmental lawyers, however, is the decision this July of the Court of Appeal of Western Australia to overturn a finding that the Environmental Protection Authority (EPA)’s environmental impact assessment of the project was invalid. Continue Reading

US Congress Considers Law That Would Overturn Chevron Deference

Earlier this year, Senate and House Republicans introduced the “Separation of Powers Restoration Act of 2016.”  On July 12, 2016, the House passed the bill by a vote of 240-171, largely along party lines.

The legislation would fundamentally alter a cornerstone of administrative law: Chevron deference.  Chevron deference describes a doctrine articulated by a unanimous US Supreme Court in its 1984 decision, Chevron USA, Inc. v. NRDC.  As the name suggests, Chevron deference requires courts to accept an agency’s reasonable interpretation of the ambiguous terms of a statute that the agency administers.  The Court later extended that rationale to require that courts also defer to an agency’s interpretation of its own regulations, a doctrine commonly referred to as Auer deference.

The rationale behind such deference is that agencies–not courts–are in the best position to implement the complex technical regulatory schemes that agencies are tasked by Congress with implementing.  Judges, in contrast, are not (normally) experts in technical fields, and are not part of either “political” branch of the Government. Practically, then, Chevron deference (and Auer deference) permit agencies to change their interpretations of ambiguous provisions in response to changing technological, social, or political circumstances.

The Separation of Powers Restoration Act of 2016 would amend the Administrative Procedure Act to require that courts decide “de novo all relevant questions of law, including the interpretation of constitutional and statutory provisions and rules.”  Instead of deferring to agency interpretation, courts would be tasked with examining de novo (without deference) statutory language and agency rules.  That is, as proposed, the statute would eliminate both Chevron deference and Auer deference–agency decisions about statutes and rules would be subject to de novo review.  This would impact a wide range of agency action because Congress regularly drafts agencies’ mandates broadly, with Chevron deference in mind.  It is unclear how de novo review might work in practice.  But, at a minimum, the legislation would place courts at the center of controversial agency decision-making, and potentially discourage agencies from taking expansive interpretations of their statutory authority. Continue Reading

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