Articles Posted in Environmental

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Today, our colleagues Norman Carlin and Kevin Ashe posted their client alert on the California Environmental Protection Agency’s and Office of Environmental Health Hazard Assessment’s recent release of an “Update to the California Communities Environmental Health Screening Tool,” better known as CalEnviroScreen Version 3.0. CalEnviroScreen is a software tool used to identify and direct resources to communities affected by pollution, based on environmental exposure and population data. As guidance for prior CalEnviroScreen versions made clear, however, the tool’s approach to “cumulative impacts” is very different from that of environmental review under the California Environmental Quality Act (CEQA). While Version 3.0 omits a clear statement to that effect, lead agencies and project proponents should be confident that CEQA law has not changed and CalEnviroScreen remains the wrong tool for CEQA review of local projects and permitting decisions. The alert is titled CalEnviroScreen 3.0 – Still the Wrong Tool  for CEQA Review.

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Last summer, in the waning stages of the Supreme Court’s 2015-2016 term, the U.S. Supreme Court issued an opinion reversing the U.S. Court of Appeals for the Ninth Circuit’s use of Chevron deference to overrule a district court which had decided that neither the Fair Labor Standards Act (FLSA) nor the varying interpretations of the special automotive dealership regulatory interpretations excluded service advisors from the exemptions for overtime compensation. The case is Encino Motorcars, LLC v. Navarro. Now, on remand, the Ninth Circuit, again, has concluded that service advisors are entitled to overtime pay and compensation.

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OSHA has just published a Final Rule restating its interpretation of the “continuing violations” theory. There are now two Circuit Court of Appeals rulings that disagree with this interpretation: AKM LLC dba Volks Contractors v. Secretary of Labor, et al. (Volks) and Delek Refining, Limited v. Occupational Safety and Health Review Commission, et al. (Delek).

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On January 3, the U.S. Court of Appeals for the Tenth Circuit issued a ruling reversing the district court’s decision that Asarco could not proceed with its claims for cost recovery at a Utah Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) mining site. The case is Asarco, LLC v. Noranda Mining, Inc.

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Recently Law360 published my three-part series covering 2016’s most significant environmental cases decided by the U.S. Supreme Court and federal courts. Part 1 covers the U.S. Supreme Court and federal courts sitting in the D.C., First, Second, Third and Fourth Circuits. Part 2 highlighted cases decided by the federal courts sitting in the Fifth, Sixth, Seventh, Eighth and Ninth Circuits. Part 3 covers cases decided in the Tenth and Eleventh Circuits, as well as several state supreme courts.

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On December 22, the U.S. District Court for the District of Columbia issued an opinion in Water Quality Insurance Syndicate v. U.S., which reversed the Coast Guard’s National Pollution Funds Center’s (NPFC) finding of gross negligence by the captain of the MONARCH, a supply vessel that collided with an offshore oil and gas production platform in the Cook Inlet, AL. This decision may have significant implications for insurers. Continue reading

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On December 21, the Administrator of the Environmental Protection Agency (EPA) signed the Final Rule revising the EPA’s Chemical Accident Prevention regulations, generally known as the Risk Management Program (RMP). These rules were mandated by the 1990 Clean Air Act amendments that regulate emissions of hazardous air pollutants (42 U.S.C. § 7412), and the rules are located at 40 C.F.R. Part 68. The EPA is authorized by law to prevent and respond to the accidental release of “regulated substances” by stationary sources by promulgating appropriate regulations which recognize “differences in size, operations, processes, class and categories of sources.” EPA’s list of regulated toxic and flammable substances and their threshold quantities is located at 40 C.F.R. § 68.130. The latest revisions to the RMP rules respond to Executive Order 13650, and a number of recent serious releases of hazardous air pollutants (HAP) from HAP storage facilities.

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On April 7, 2015, the U.S. Court of Appeals for the Fifth Circuit, in Gulf Restoration Network, et al., v. McCarthy, vacated and remanded a decision of the United States District Court for the Eastern District of Louisiana that granted, in part, the plaintiff environmental organizations’ complaint that the Environmental Protection Agency (EPA), by denying a petition for rulemaking and thereby failing to impose numeric water quality standards to control nitrogen and phosphorus pollution within the Mississippi River Basin and the Northern Gulf of Mexico, violated the Administrative Procedure Act. On remand, the district court has now granted EPA’s motion for summary judgment, and dismissed the Plaintiffs’ petition for rulemaking filed with EPA.

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On December 13, the U.S. Court of Appeals for the Fourth Circuit decided the case of Catawba Riverkeeper Foundation, et al., v. North Carolina Department of Transportation, et al. The Fourth Circuit concluded that, “[b]ecause events beyond the parties’ control have mooted this appeal, leaving the district court’s judgment undisturbed would not serve the public interest.” Continue reading

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On December 13, the U.S. Court of Appeals for the Fifth Circuit decided the case of United States of America, e ex rel. Jeffrey M. Simoneaux v. E. I. duPont de Nemours & Company. Reversing the district court, the Fifth Circuit held that “potential or contingent penalties” are not obligations under the federal False Claims Act (FCA) and they are not obligations under the FCA “even when a statute requires immediate action from a violator,[because] the Government must still choose whether to impose a penalty.” Continue reading