On August 10, 2015, the U.S. Court of Appeals for the Ninth Circuit issued a very rare Writ of Mandamus, directing the EPA to issue a “full and final response” by October 31, 2015 to a pesticide regulatory petition filed several years ago by the Pesticide Action Network North America. The case is In re Pesticide Action Network North America and Natural Resources Defense Council, Inc. v. EPA.
In another recent Fifth Circuit case, Cox Operating , L.L.C. v. St. Paul Surplus Lines Insurance Company, decided July 30, 2015, the Court of Appeals issued an important environmental/insurance ruling in an insurance recovery controversy. The Court of Appeals affirmed the lower court’s decision that the insurance company breached its policy commitments to Cox, by failing to cover Cox’s costs for the millions of dollars that the company spent to clean up the pollution and debris caused to Cox’s Louisiana oil and gas facilities after they were severely damaged by Hurricane Katrina in 2005.
Recently, the National Association of State Contractors Licensing Agencies coordinated a national sting operation carried out June 15-26, 2015 “to elevate consumer protection and deter illegal construction practices.” Nine states participated in the effort to combat what is commonly referred to as the underground economy: Arizona, California, Florida, Nevada, Rhode Island, South Carolina, Texas, Utah and Washington. Continue reading
On July 31, 2015, the U.S. Court of Appeals for the District of Columbia Circuit issued a ruling affirming the Secretary of Labor’s interpretation of the term ”fire” in the Federal Mine Safety and Health Act of 1977, and accordingly affirmed a decision of the Federal Mine Safety and Health Review Commission that patches of smoldering and smoking coal observed by mine safety inspectors in a coal mine could support the issuance of safety orders, citations and fines. It was agreed that no visible flames were present, and the mining company challenged the basis of these sanctions. The case is The American Coal Company v. Federal Mine Safety and Health Review Commission and Department of Labor. Continue reading
In a case that does not seem to have attracted much notice, the U.S. District Court for the District of Columbia issued a very long opinion rejecting the arguments made by a number of major business trade groups that the new National Labor Relations Board (NLRB) union election rules exceed the agency’s statutory authority, are arbitrary and capricious and violate employers’ rights under the First and Fifth Amendments to the Constitution. This case is Chamber of Commerce of the United States, et al. v. NLRB, decided July 29, 2015. Continue reading
On July 30, 2015, the U.S. Court of Appeals for the Ninth Circuit issued a ruling affirming the district court’s dismissal of an action brought by the City and County of San Francisco against the U.S. Department of Transportation (DOT) and its administering Agency, the Pipeline & Hazardous Materials Safety Administration (Administration). The case is City and County of San Francisco v. US Department of Transportation, et al.
The Washington State Department of Labor & Industries recently confirmed that has been some confusion voiced about when the term “associated” in the phrase “associated Class 2 low voltage wiring,” added in recent revisions to the scope of work for Class B labels in W.A.C. § 296-46B-908, applies to the low voltage cable. In its Electrical Currents newsletter, Volume 19, No. 8 (August 2015), it confirms that the term “associated” means “only the cable originally connected to the united listed on the Class B label may be extended or replaced to accommodate the replacement unit. It does not include new cable installed to a new unit.” It provides two scenarios with the options for permit requirements (i.e., (1) a like-in-kind replace of a single furnace, heating unit, air condition, or heat pump, and (2) a like-in-kind replacement of a single furnace, along with the installation of a new air condition or heat pump), and includes an explanation for each.
Virginia Senate Bill 891 amends Section 43-3 of the Code of Virginia and add Section 11-4.1:1 to protect subcontractors (defined in Section 43-1 as “contractors, laborers, mechanics, and persons furnishing materials, who do not contract with the owner but with the general contractor”), lower-tier subcontractors and material suppliers. Subdivision (c) of Section 43-3 now provides, in relevant part, that “a subcontractor, lower-tier subcontractor, or material supplier may not waive or diminish his lien rights in a contract in advance of furnishing any labor, services, or materials.” In addition, new Section 11-4.1:1 prohibits a subcontractor, lower-tier subcontractor or material supplier waiving or diminishing its right to assert payment bond claims or claims for demonstrated additional costs in a contract in advance of furnishing any labor, services, or materials. A provision in a contract that purports to waive these rights is null and void. Senate Bill 891 was effective July 1, 2015.
In Organized Village of Kake, et al. v. U.S. Department of Agriculture, et al., decided July 29, 2015, an en banc panel of the U.S. Court of Appeals for the Ninth Circuit reinstated the Department of Agriculture’s (Department) 2001 “Roadless Rule”, which limits timber harvesting in the natural forests under the control and supervision of the Department. This rule has particular importance for the Tongass National Forest in Southeast Alaska. Indeed, after the Department decided not to appeal the latest adverse decision of the U.S. District Court of Alaska, the State of Alaska intervened and participated in this appeal. The tangled history of the Roadless Rule implicates three Presidential administrations, several decisions of the federal district courts and three U.S. Courts of Appeals, and it would be surprising if this latest decision will be the last.
This is Part VII of VII of a brief recap of some the significant environmental law and administrative cases decided in the past few months:
B. Texas State Court of Appeals
On June 1, 2015, the Court of Appeals for the Seventh District sitting in Amarillo issued a ruling reversing the grant of summary judgment to five energy production companies whose operations are located near DISH, Texas. The case is Sciscoe, et. al. v. Enbridge Gathering (North Texas), L.P., et. al. Eighteen homeowners and the Town of DISH filed separate lawsuits against these companies essentially alleging that the noise, light, odors, and chemical particulates emanating from their adjacent operations caused a nuisance and constituted a trespass, entitling the plaintiffs to monetary damages; the plaintiffs, however, did not seek injunctive relief. The defendants argued that the migration of odors and chemical particulates onto the plaintiffs’ properties cannot constitute a trespass as a matter of law; that their claims are preempted by Federal and State Clean Air Acts; their emissions fall within the regulatory limits established for these emissions; and that the applicable statute of limitations requires their dismissal. The trial court agreed, and granted summary judgment.
On appeal, the Court of Appeals ruled that the trial court was in error when it ruled that, as a matter, of law, the migration of airborne particulates cannot constitute an actionable trespass. While the plaintiffs must prove their case, they should have the chance to do so. With respect to the defendants’ argument that their permitted natural gas compression units adhered to the law, the Court of Appeals ruled that the they were not “somehow immune from liability for damages they may have caused just because they have a regulatory permit”, and therefore summary judgment on this issue was inappropriate. Regarding the ruling of the trial court that the plaintiffs’ claims were barred by the relevant statute of limitations, the Court of Appeals ruled that the defendants failed to establish, as a matter of law, every element of that defense. Accordingly, summary judgment on this point was reversed. On the other hand, it ruled that the plaintiffs’ claim to recover damages for future diminution in the value of their properties was preempted by Federal and State law.
A state Court of Appeals for the Fourteenth District sitting in Houston, Texas, on March 26, 2015, ruled that environmental indemnities, which were a component of an exchange of Louisiana oil and gas properties in 1994, could be enforced today by and against the corporate successors to the original companies that negotiated these provisions. The case is ConocoPhillips Company v. Noble Energy, Inc., No. 14-13-00884-CV. The decision is significant because ConocoPhillips settled a claim for environmental damages associated with these swapped properties filed by the State of Louisiana and the Cameron Parish School Board for $63 million, and indemnity that was denied.
III. EPA’s Environmental Appeals Board.
On March 13, 2015, the EPA’s Environmental Appeals Board (EAB) issued an important ruling in a Toxic Substances Control Act (TSCA) enforcement matter. The case is In re Elementis Chromium, Inc., TSCA Appeal 13-03.
The Chief Administrative Law Judge imposed a fine of $2,571,800 against Elementis Chromium, a manufacturer and distributor of chromium chemicals, finding that the company violated Section 8(e) of TSCA by failing to submit to EPA an occupational epidemiology study of hexavalent chromium. Elementis Chromium argued that the complaint should be dismissed as it was untimely, in that the five year federal statute of limitations (28 U.S.C. § 2462) had expired, and moreover, the report was exempt from TSCA disclosure because it was exempted from disclosure on the basis of long-standing agency guidelines interpreting Section 8 (e). The EAB held that the statute of limitations did not expire because the “continuing violation” doctrine applied to this matter and to the failure of Elementis Chromium to submit the report to EPA. Nevertheless, the decision to fine Elementis Chromium must be reversed because Elementis Chromium was correct in asserting that EPA guidance exempted the submission of this report because EPA was already adequately informed of the corroborative information contained in the study.
With respect to the statute of limitations (which applies in administrative enforcement matters), the EAB noted that Elementis Chromium’s last date of alleged non-compliance took place on November 17, 2008– based on the continuing violations doctrine– and accordingly, the filing of the complaint in September 2012 was well within the operative five year period. The EAB disregarded Elementis Chromium’s argument that the statute of limitations began to run when Elementis Chromium received the report—in November 2002—because a Section 8 (e) violation is always an ongoing violation because each day the study is withheld is itself a new day of violation. This reading of the statute is confirmed, the EAB holds, by a review of the statutory language and a number of applicable court rulings reviewing the failure of a regulated party to provide a required notice or information to the agency. The U.S. Supreme Court’s recent decision in Gabelli, et al., v. SEC, 133 S. Ct. 1216 (2013) was distinguished because it resulted from an SEC enforcement action. With regard to the impact of EPA’s TSCA guidance, the EAB notes that in 1978 EPA published a Policy Statement on Section 8(e) which provided an exemption for “presumptively reportable information” that was corroborative of a well- established adverse effect, and this policy was reiterated in 1991 and 2006. The EAB was persuaded that the Elementis Chromium’s study fit within this administrative exemption.