Preparing for Revised Warning Requirements Under California Proposition 65

Yellow road warning sign , Are You Ready ? , 3d render

On August 30, 2016, the California Office of Environmental Health Hazard Assessment (OEHHA) adopted revised warning requirements under the Safe Drinking Water and Toxic Enforcement Act of 1986, commonly known as Proposition 65 and codified at California Health and Safety Code section 25249.5.  The new regulations take effect on August 30, 2018.

Proposition 65 requires the State of California to publish a list of chemicals known to cause cancer or reproductive harm.  Any business with 10 or more employees doing business in California is prohibited from knowingly or intentionally exposing any individual to a listed chemical without giving a “clear and reasonable” warning.  The new regulatory revisions modify the warning method and content deemed by OEHHA to be de facto “clear and reasonable” under the statute’s safe harbor provisions.  The revisions also clarify which entities have responsibility for providing a warning. Continue Reading

MSHA Releases “Safest Year in Mining History” Stats and Vows to Keep Inspector Boots on the Ground to Stave Off October’s “Deadliest Month” Trend

According to data released on October 11, 2016 by the US Department of Labor’s Mine Safety and Health Administration (MSHA), the fiscal year of 2016 was the “safest year in mining history.” Assistant Secretary of Labor for Mine Safety and Health, Joseph A. Main, announced at the National Mine Health and Safety Academy in Beaver, West Virginia that between Oct. 1, 2015 and Sept. 30, 2016, the mining industry experienced a historic low of 24 deaths across the nation’s more than 13,000 mines – down from 38 mining deaths in FY 2015 and 30% below the next lowest annual total of 34 deaths in FY 2013.  This historic safety milestone included a 133-day stretch in late 2015 without a single metal/non-metal (MNM) (i.e., non-coal mine) mining death, and the first time in MSHA’s recorded history with no MNM fatalities in the traditionally “deadliest” month of October.

MSHA attributes this reduction in fatalities to a combination of aggressive enforcement efforts at MNM mines over the past 18 months, enhanced outreach and training opportunities in both divisions, including an increase in onsite “walk and talks” and the initiation of quarterly, national conference calls for stakeholders with Mine Safety trainers, and cooperation from industry.  In spite of the positive safety trend, the Agency does not intend to rest on its laurels, as Assistant Secretary Joseph Main has made clear in recent stakeholder meetings.  Referring to the four fatal mining accidents that occurred in September 2016 (three in MNM, one in coal), Secretary Main cautioned that the safety gains made in FY 2015 are beginning to erode and called on all industry stakeholders, including mine operators, miners’ organizations, associations and trainers, “to increase their attention to the conditions and hazards that are leading to fatalities.”  Together, said Main, the Agency and industry “can – and must – strive to reach zero mining deaths.” Continue Reading

SPB Attorneys Address Bankruptcy and Successorship Issues Related to Mine Safety and Health (MSHA) Enforcement

As the mining industry continues to feel the impacts of low commodity prices, bankruptcy and successorship issues have become increasingly relevant.  Historically, bankruptcy has provided for the purchase of an insolvent entity’s assets without the third-party purchaser incurring the undue risks of taking on the debtor’s liabilities.  Indeed, this very mechanism has allowed for new operators to continue mining operations that may otherwise fold completely, with potentially devastating effects on the economies of local mining communities.  However, recent case law coming out of the Federal Mine Safety and Health Review Commission—the independent agency tasked with adjudicating claims under the Mine Act—demonstrates that at least some administrative law judges are in disagreement with the typical bankruptcy process and may attempt to hold companies who purchase mining assets out of the bankruptcy process liable (in some form or another) as successors in interest.  This potentially includes liability for events that occurred well before bankruptcy and which were disposed of or settled during bankruptcy proceedings and in the face of bankruptcy court orders to the contrary.

Squire Patton Boggs attorneys Peter Gould and Matthew Cooper recently spoke on this new topic at the Energy and Mineral Law Foundation’s (EMLF) annual mining conference in Las Vegas, Nevada, in conjunction with MINExpo 2016. The topic sparked great interest from the mining community.  Although legal questions surrounding this topic are far from settled, this issue warrants close attention as the law continues to develop.  Slides from the EMLF presentation are attached here: EMLF Successors, Bankruptcy, and MSHA.


Oral Argument Approaching in Litigation to Expand 8th Circuit’s Ban on US EPA’s Blending Prohibition

Guardian of Law Statue United States Supreme Court BuildingOral argument in the Center for Regulatory Reasonableness (CRR) v. EPA, Case No. 14-1150 (D.C. Cir.) matter has been set for October 21, 2016.

At issue is the March 25, 2013 decision of the Eighth Circuit in Iowa League of Cities v. EPA, Case No. 11-3412, which vacated US EPA’s across-the-board prohibitions on the use of mixing zones for primary contact recreation waters and “blending” for peak wet weather flows.  (Additional information available here).  The Eighth Circuit’s decision is important for entities that have relied on blending technology in their facilities or mixing zones in primary contact waters to meet water quality standards and clarifies that application of effluent limitations to internal treatment points is beyond the statutory authority of US EPA which is limited to promulgation of limitations for discharges of pollutants “from point sources into navigable waters.”  33 U.S.C. §1362(11).  The lawsuit also involved the successful challenge of US EPA letters outlining the Agency’s blending policy and therefore has broad implications for what constitutes a challengeable agency action.

Perhaps wary of establishing unfavorable precedent, US EPA opted not to appeal that decision and invoked the doctrine of intercircuit nonacquiescence in taking the position that the Eighth Circuit’s decision applies as binding only in that circuit and would be applied on a case-by-case basis in other jurisdictions.  In response, the Center for Regulatory Reasonableness—headed by the attorneys who won the Eighth Circuit appeal—filed a petition for review in the D.C. Circuit challenging correspondence outlining US EPA’s position in the wake of the decision and arguing that the Court should require the Agency to apply the Eighth Circuit’s ruling nationwide.

In particular, CRR argues in its Petitioner Brief and Reply Brief that US EPA’s unofficial policy position fails to comply with the notice and comment rulemaking requirements of the Administrative Procedure Act and allowing intercircuit nonacquiescence would run afoul of Clean Water Act’s (CWA) judicial review procedures that seek to ensure uniformity by preventing more than one circuit court from reviewing the same Agency action.  In its Response Brief, US EPA argues that the Court lacks jurisdiction over CRR’s attempted challenge of Agency correspondence and that the CWA’s judicial review exclusivity provisions apply only to challenges of the sort not at issue here (i.e. those involving a “broadly published regulation following a public notice-and-comment process and with unquestionable nationwide reach”).

Not surprisingly, given that the lawsuit targets US EPA’s correspondence after the Eighth Circuit’s opinion, the parties have exchanged several rounds of briefing regarding the appropriate scope of the administrative record.  Most recently, CRR has argued that internal policy communications obtained through a Freedom of Information Act (FOIA) request, some of which US EPA claims were privileged and inadvertently disclosed, evidence the Agency’s lack of candor with the Court regarding its blending policy and merit sanctions.  All of these issues are expected to be rolled into the upcoming oral argument.

Squire Patton Boggs will continue to monitor this litigation and provide updates regarding its potential policy implications.

What Duties Does a UK Employer Have in the Age of Rising Suicides?

In 2012, the UK Government published a strategy entitled “Preventing Suicide in England: A cross-governmental outcomes strategy to save lives”, and two further updates were published in 2014 and 2015.  In 2016, an inquiry was launched by England’s Health Committee to tackle an 8% increase in the suicide rate.  The issue of suicide is important to employers when the suicide relates to an employee, whether the act occurs in the workplace or not.  The Health Committee has looked to employers and unions to provide evidence and input on the role they play in suicide prevention and promoting mental health at work. The Health and Safety Executive also listed occupational health as a priority in its revised strategy for 2016: Helping Great Britain Work Well.

The Health Committee will work to analyse factors influencing the suicide rate increase and to put a plan in place to tackle suicide and its barriers. The Health Committee says that suicide is now the leading cause of death for men aged 15-49. But figures also show a 14% increase in female suicide between 2013 and 2014, “demonstrating the necessity of work targeted at both sexes.” The Committee Chair commented that “even the terminology we use, for example when people talk about ‘committing’ suicide – that’s a relic from an age when suicide was actually illegal . . . The term we should be using is ‘take their own lives.’”

When a suicide occurs, it will be the subject of an Inquest and the Coroner will look into the circumstances that culminated in the deceased’s decision to take his/her own life.  For example, where the deceased’s family have alleged that the suicide was due to unfair treatment or bullying at work, the Coroner has called evidence from the employer to prove that proper procedures were in place and implemented in respect of the deceased.  An employee’s suicide could be a ‘reasonably foreseeable’ consequence of stress and/or an underlying psychological condition, as was the case in CORR V IBC HoL 2008, where the decedent committed suicide as a result of severe depression resulting from physical injuries sustained from a workplace accident.   Employers should therefore take note, as it could be found to have caused or contributed to the suicide by breaching the employer-employee duty of care.

Employers should implement policies to support their employees who are going through mental difficulties and to monitor the well-being of remote and vulnerable workers.  Although assumed, it is also important to ensure employees are treated fairly and transparently at all times to avoid potential causal links to a suicide.  In order to address the rise of suicide, the Health Committee referred to the extra billion pounds a year the NHS will receive to provide mental health support. It would be prudent for employers to encourage their employees to seek relief and take advantage of the resources available.

US Deputy Attorney General: Focus on Individual Wrongdoing to Promote Compliance

This month marks the one-year anniversary of the Yates Memorandum, the US Department of Justice (DOJ) memorandum drafted by Deputy Attorney General Sally Quillian Yates, which announced revisions to the US Attorney’s Manual (USAM). One purpose of the Yates Memorandum was to refocus corporate compliance on individual accountability. To do so, it created incentives for companies to prioritize a culture of compliance and make compliance, both corporate and individual, an integral part of their operations.  Additionally, if a civil or criminal enforcement investigation does occur, the DOJ will evaluate the timeliness, diligence and thoroughness of the company’s discovery and identification of individual responsibility when assessing any cooperation credit.

In this article, published in the September 9, 2016 issue of Securities Regulation Daily, Squire Patton Boggs Partner Barry A. Pupkin examines how companies are meeting the lofty goal of creating a culture of compliance that is central to corporate decision-making and fits within a company’s business incentives of profit maximization and competition.  As in the highly regulated securities context, businesses touched by stringent environmental laws should similarly consider this renewed focus on individual accountability and on ways to incorporate regulatory environmental regulatory compliance into their company culture.


Health & Safety Retaliation Cases are Very Much Alive: Current Trends in OSHA and MSHA Whistleblower Laws and Regulations

Safety helmets and gloves hang from a rack on a mining site

What was recently a hot topic within the regulatory community, conversations about Occupational Safety & Health Administration (OSHA) and Mine Safety & Health Administration (MSHA) whistleblower, retaliation, and discrimination claims have seemingly fallen by the wayside.  But don’t be fooled.  Two recent developments demonstrate that these US Department of Labor agencies continue to find novel ways to protect our nation’s workers when they raise safety, health, or other legal compliance concerns in the workplace. These include: (1) OSHA’s expedited determination Pilot Program; and (2) MSHA’s increased focus on “interference” claims. Continue Reading

Deadline for TSCA Chemical Data Reporting Extended to October 31, 2016

Closeup of hands on clock face

Last week, US EPA announced in the Federal Register that it has extended the deadline for companies subject to its Chemical Data Reporting (CDR) rule to submit data on the chemical substances they manufacture and import pursuant to the Toxic Substances Control Act (TSCA) from September 30, 2016 to October 31, 2016.

For detailed information on the CDR reporting requirements, please refer our client alert here.

Under the rule, regulated companies must disclose certain information on the chemical substances they manufacture or import. This information can include specific production volume, processing and use, or other relevant technical data. Additionally, upfront substantiation is required for Confidential Business Information (CBI) claims for processing and use information, as well as for site identity and chemical identity. CBI claims must be made and substantiated at the time the information is submitted. Otherwise, the information reported will not be confidential.

Because all data must be submitted electronically using US EPA’s web-based reporting tool (e-CDRweb) through EPA’s Central Data Exchange (CDX), we recommend uploading the required data to US EPA well in advance of the October 31, 2016 deadline to avoid any last-minute problems. If a company fails to submit and upload all applicable data by the deadline, it could face potential enforcement action and penalties.

Squire Patton Boggs attorneys are available to assist with any questions regarding the CDR reporting requirements.

Georgia and South Carolina are the Newest Battle Grounds for States’ Eminent Domain Authority

In 2005, the US Supreme Court held in Kelo v. City of New London that the city of New London, Connecticut could condemn 15 residential properties for a “public use” that entailed transferring the property to a new private owner.  The majority opinion backstopped its expansive definition of “public use” by emphasizing that “nothing in [its] opinion precludes any State from placing further restrictions on its exercise of the takings power.”  In the resulting backlash, many states bolstered protections for property rights against government use of eminent domain.

New battles over eminent domain are bringing property owners and environmental activists together again.  Last year, energy infrastructure company Kinder Morgan revealed its plan to construct a pipeline through parts of Georgia and South Carolina.  In March, the company announced that it had suspended construction on the project after the Georgia legislature passed legislation placing a moratorium on pipeline construction.  Georgia’s legislature declared: Continue Reading

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