DC Circuit Upholds US EPA Decision Not to Issue New Financial Assurance Requirements for the Hardrock Mining Industry

JusticeOn July 19, 2019, the D.C. Circuit issued its decision in Idaho Conservation League v. Wheeler, upholding US EPA’s decision not to issue financial responsibility requirements for the hardrock mining industry under Section 108(b) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).  The requirements, if adopted, would have cost the hardrock mining industry an estimated $111 to 171 million per year. Continue Reading

US EPA Announces Policy To Enhance State Partnerships in Civil Enforcement and Compliance Assurance Work

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On July 11, 2019, US EPA announced its new policy on Enhancing Effective Partnerships Between the EPA and the States in Civil Enforcement and Compliance Assurance Work (the Policy). The Policy was communicated as a memorandum from Assistant Administrator Susan Parker Bodine to the regional administrators. To date, the Policy is US EPA’s most comprehensive statement on the Trump administration’s proposed transfer of responsibility for compliance and enforcement matters from the federal agency to authorized states.

US EPA has been signaling that it will move to a more state-led enforcement and compliance policy. In January 2018, for example, US EPA issued interim guidance to enhance planning and communication between US EPA regions and the states. Later, in October 2018, Administrator Wheeler issued a memorandum outlining four key principles relevant to the enforcement of federal environmental laws. The principles rely heavily on state-led enforcement. Namely, the principles request: (1) general deference to states in state-implemented programs, (2) effective communication between the EPA and the states, (3) clear standards of review and predictable processes, and (4) a clear process for elevating issues.

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US Supreme Court Affirms Tweaked Auer Deference, But Is It Now a “Paper Tiger”?

In our prior coverage of Kisor v. Wilkie, we predicted that the Court would impose “greater scrutiny” on “administrative agencies’ . . . interpretation of their regulations.”  And the Court did.  The Court’s decision will affect every aspect of the federal government’s regulation of environmental, safety, and health.

At the end of its term, the US Supreme Court issued its opinion in Kisor v. Wilkie—upholding but limiting Auer deference.  Auer instructs that courts must defer to an agency’s construction of its own regulation unless that interpretation is “plainly erroneous or inconsistent with the regulation.”  (Indeed, under Auer (before Kisor), the US Supreme Court upheld regulations even when the interpretation was not “the best one.”) Auer deference, however, will work much differently going forward.

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Ohio Appeals Dismissal of the State’s Complaint Against Rover Pipeline LLC Due to Ohio EPA’s Failure to Timely Respond to Request for CWA Section 401 Certification

Pipe LayingOn March 12, 2019, Judge Kristin G. Farmer for the Stark County Court of Common Pleas dismissed the State of Ohio’s Third Amended Complaint against Rover Pipeline. The State alleged that Rover had committed widespread environmental violations during the construction of its 713-mile interstate natural gas pipeline. The court dismissed the complaint on the grounds that it lacked jurisdiction to hear the case because the State had waited over a year to “act” on Rover’s Clean Water Act §401 Certification request. On April 10, 2019, the State appealed that decision to the Court of Appeals for the Fifth District of Ohio.  Continue Reading

US EPA Formally Proposes Repeal of “Once In, Always In” Policy

On June 25, 2019, US EPA issued a proposed rule that would reverse the “once in, always in” policy for sources of hazardous air pollutants (HAP) that has been in place for more than 20 years. The rulemaking formalizes a January 2018 US EPA memorandum repealing the policy, an action that was challenged by environmental groups and is currently before the D.C. Circuit Court of Appeals. The petitioners claim that the memorandum conflicts with the structure and purpose of Section 112 of the Clean Air Act (CAA). The court heard oral arguments on April 1, 2019, but has not yet ruled. To the extent that petitioners claim the memorandum should have been subject to notice and comment, US EPA’s proposed rule may answer that challenge. However, the petition raises substantive issues related to whether the policy repeal is consistent with the CAA and the court’s ruling on these issues will likely affect the outcome of this rulemaking.

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How Thoroughly do UK Businesses Need to Investigate What Happens to Their Waste After They Have Transferred It?

A recent prosecution by the Environment Agency, where a company was ordered to pay £327,000, has highlighted potentially difficult issues for businesses in complying with the statutory waste duty of care.

What is the Statutory Waste Duty of Care?

All businesses generate waste of some description: from paper and kitchen waste in offices, to hazardous waste in manufacturing facilities. Section 34 of the Environmental Protection Act 1990 provides, amongst other things, that it is the duty of any business that produces, carries, or disposes of waste to take all steps that are reasonable in the circumstances:

  1. to prevent any other person from unlawfully depositing waste or treating, keeping or disposing of waste in a manner likely to cause pollution of the environment or harm to human health;
  2. to prevent any other person from operating a waste facility without, or in breach of, an environmental permit (or, where an exemption applies, otherwise than in accordance with that exemption);
  3. to prevent the escape of the waste from its control or the control of any other person; and
  4. on the transfer of waste, to ensure that the person who takes the waste has the proper authorisation to do so, and that the waste is accompanied by a written description to help properly identify it.

It is an offence not to comply with this duty of care for which the maximum penalty is an unlimited fine. Although prosecutions for breach of the duty of care have declined from around 90 per annum in 2000, to around 10 per annum now, average fines have substantially increased in the intervening period.

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June 2019 Update: Key Developments in UK and EU Environment, Safety and Health Law, Procedure and Policy

Online NewsWe are pleased to share with you the latest edition of “frESH Law Horizons – Key Developments in UK & EU Environment, Safety and Health Law, Procedure and Policy”.  In our June edition, we summarise 34 developments in the environmental, safety and health sector.  Some of the top stories this month include:

  • A food grain storage company has received a fine of £180,000 following the death of a worker struck by a lorry onsite
  • The Construction industry announces plans for mandatory licensing scheme for UK construction companies
  • UK government confirms ban on plastic straws, stirrers and cotton buds
  • UK commits to net zero carbon target by 2050
  • EU publishes the Single-use Plastics Directive
  • Waste company Biffa convicted of breaching EU transfrontier shipment of waste regulation
  • Waste incineration “best available techniques” conclusions approved
  • ClientEarth appeals EU court ruling on DEHP
  • We recently hosted our annual ESH conference

For more detailed information on these developments, as well as access to the remaining summaries, make sure you download a copy from our website.  You can also subscribe to ensure you receive our most recent edition every month.

Mobile Sources Face an Increased Risk of Agency Enforcement and Citizen Suits

On June 12, 2019, the US Environmental Protection Agency (US EPA) announced its seven enforcement and compliance assurance priority areas for fiscal years 2020-2023. One of the National Compliance Initiatives includes “Stopping Aftermarket Defeat Devices for Vehicles and Engines.” Specifically, the Agency expressed that it will have a focus on reducing aftermarket defeat device manufacture, sale, and installation across vehicle types.

Additionally, a recent case in the U.S. District Court for the District of Utah has the potential to broaden the reach of citizen suits under the Clean Air Act (CAA). The court permitted a group, the Utah Physicians for a Healthy Environment (UPHE), to bring a citizen suit against businesses and individuals engaged in the sale and repair of trucks for violations under 42 USC § 7522, including provisions regarding defeat devices.  Section 7522 of the CAA, in part, prohibits any person manufacturing, selling, or offering to sell or install “any part or component intended for use with, or as part of, any motor vehicle or motor vehicle engine, where a principal effect of the part or component is to bypass, defeat, or render inoperative” emission-related devices or elements of design. Prior to this case, courts have restricted enforcement of violations under § 7522 to the federal government. By providing an avenue for enforcement through citizen suits, the district court’s approach expands the exposure manufacturers could face and may justify an additional layer of risk assessment for the industry.

The CAA’s citizen suit provision provides that citizens may commence a civil action for a “violation of (A) an emission standard or limitation under this chapter or (B) an order issued by the Administrator or a State with respect to such a standard or limitation.” Such an action may not proceed, however, “if the Administrator or State has already commenced and is diligently prosecuting a civil action in a court of the United States or a State to require compliance with the standard, limitation, or order. . . .” Historically, courts have interpreted the phrase “standard or limitation” to permit citizen suits only for air violations of stationary source emissions standards and certain other clear-cut violations. Violations under 42 USC § 7522 relating to the installation, sale, etc. of defeat devices, on the other hand, have traditionally been enforced only by government agencies because courts have interpreted the prohibitions in 42 USC § 7522 as not falling within “emission standards or limitations.”

Recently, however, in Utah Physicians for a Healthy Environment (UPHE) v. Diesel Power Gear LLC, et al., 2019 U.S. Dist. LEXIS 40545, the court considered a case where defendants allegedly violated 42 USC § 7522 of the CAA by tampering with emission control devices on diesel vehicles. Specifically, the petitioners claimed that the defendants “modified diesel trucks in violation of emissions limitations standards, sold parts designed to evade emissions standards, and sold illegally-modified trucks.” As a result, petitioners claimed these actions contributed to air pollution in the Wasatch Front and harm to members of UPHE. Chief Judge Shelby ultimately issued partial summary judgment to UPHE regarding its claims that the defendants violated the CAA and the Utah State Implementation Plan (SIP) regulations “relating to the installation, removal, operation, and sale of emission control devices on diesel vehicles.” In doing so, Judge Shelby potentially brought Section 7522 violations under the umbrella of CAA citizen suits. 

A threshold question the court had to consider was whether or not UPHE had standing to bring such a suit. In context, even if other district courts permit such citizen suits in the future, plaintiffs will still have to establish standing.  Judge Shelby analogized to Clean Water Act (CWA) cases in determining the standard to be used, and he stated that UPHE would have to show that “[d]efendants discharged a pollutant that causes or contributes to the kinds of injuries suffered by UPHE’s members in the Wasatch Front.” The petitioners met that burden, according to the court, by showing that defendants contributed NOx and particulate matter (PM) to air in the Wasatch Front. Judge Shelby noted that petitioners have standing to seek redress in the form of civil penalties, mitigation projects, and declaratory and injunctive relief, but not mandatory injunctive relief.

Other noteworthy aspects of the case include Judge Shelby’s analysis of corporate responsibility and passthrough sales. Judge Shelby distinguished the responsible corporate officer doctrine from the corporate veil and held that the “responsible corporate officer doctrine applies in CAA citizen enforcement suits.” In doing so, he referenced decisions in the Second and Eleventh Circuits that had applied the doctrine and held defendants personally liable under the CAA and the CWA. Regarding passthrough sales, the court declined defendants’ argument that selling vehicles already equipped with defeat devices did not rise to the level of selling such parts under Section 7522(a)(3)(B). Instead, Judge Shelby wrote that the “language plainly encompasses B&W Auto’s ‘as is’ sale of modified vehicles it knew or should have known to contain defeat emission parts.” 

Although this case is not binding on other federal courts, the success of UPHE may encourage other citizen suits in the future for CAA violations under Section 7522. It also occurs at a time when agency enforcement in the context of aftermarket parts is on the rise. For example, in April 2019, US EPA settled with an automotive parts manufacturer and distributor for manufacturing and selling defeat devices on vehicles. Aftermarket parts companies, manufacturers, and other entities in the industry should assess their risk profile based on these recent developments.

Asbestos Receiving Renewed Attention in Light of Additional US EPA Assessments under TSCA and Potential Ban by Congress

Asbestos is in the hot seat these days and is receiving significant attention from both US EPA and Congress.  In particular, US EPA continues to evaluate asbestos risks under the Toxic Substances Control Act (TSCA) and has imposed additional regulations, while Congress is currently considering an outright ban on the substance.

On April 25, 2019, US EPA issued a final Significant New Use Rule (SNUR) under Section 5 of TSCA to prevent certain discontinued uses of asbestos from re-entering the marketplace without a review by EPA.  The rule essentially restricts manufacturing, importing or processing of asbestos for certain target uses that are neither ongoing, nor already prohibited under TSCA. Continue Reading

May 2019 Update: Key Developments in UK and EU Environment, Safety and Health Law, Procedure and Policy

Electronic NewsWe are pleased to share with you the latest edition of “frESH Law Horizons – Key Developments in UK & EU Environment, Safety and Health Law, Procedure and Policy”. In our May edition, we summarise 26  developments in the environmental, safety and health sector. Some of the top stories this month include:

  • A fine for a NHS Trust for exposing contractors to asbestos during refurbishment work
  • The Food Standards Agency (FSA) fining a meat-cutting plant that prevented inspectors from entering the site
  • A US manufacturing company avoiding corporate manslaughter charges by pleading guilty to health and safety failings
  • The National Crime Agency publishing its strategic assessment and seeking investment to assist with serious and organised crime
  • The FSA and Food Standards Scotland announcing support for full-ingredient food labelling

For more detailed information on these developments, as well as access to the remaining summaries, make sure you download a copy from our website. You can also subscribe to ensure you receive our most recent edition every month.