A Court-Side Seat: An OSHA PSM Case, State Litigation Unmoved, New EPA Funding and Special Safety Standards for New Passenger Rail



This roundup of recent environmental and regulatory law rulings and rulemakings includes an EPA deadline extended, a NEPA exclusion and PSM application upheld, and an unsuccessful appeal to the federal officer removal doctrine.


State of Rhode Island v. Shell Oil Products, et al.
On October 29, 2020, the U.S. Court of Appeals for the First Circuit rejected an appeal of various oil and energy companies to have the latest state-filed fossil litigation case removed to federal court. In the case, Rhode Island generally alleged that these defendants are liable for damages caused by the sale and use of their fossil fuels in Rhode Island because the defendants misled the public as to the consequences of this use. The defendants argued on appeal that the federal officer removal statute authorized the removal of this litigation to the federal courts. Aligning itself with other federal appellate courts, the First Circuit held that producing oil and gas pursuant to federal permits and authorizations or fulfilling federal energy supply agreements does not trigger the federal officer removal doctrine. A similar decision by the U.S. Court of Appeals for the Fourth Circuit will be reviewed by the Supreme Court.

Chavez v. Occidental Chemical Corporation
The U.S. Court of Appeals for the Second Circuit may be nearing the issuance of a ruling that could bring to an end the long-standing DBCP banana plantations class action litigation that began many years ago in the state courts of Texas. When an offshoot of this litigation, in particular the impact of state statute of limitations on the viability of this lawsuit, came before the Second Circuit, the court asked New York’s highest state court, the New York Court of Appeals, about the application of New York’s statute of limitations laws in such circumstances. On October 20, 2020, the New York Court of Appeals responded, stating that (a) New York recognizes the Supreme Court’s 1974 ruling in American Pipe, which pertains to the tolling of the statute of limitations for absent class members of a putative class action filed in another jurisdiction, and (b) agreeing that orders issued by the U.S. District Court for the Southern District of Texas in 1995 dismissing that the action on forum non conveniens grounds, ended the tolling.

Scalia v. Wynnewood Refining Company
On October 27, 2020, the U.S. Court of Appeals for the Tenth Circuit decided an important OSHA “process safety management” (PSM) case. A boiler located at the Wynnewood Refinery experienced a deadly explosion. The current owner of the refinery was cited for violating provisions of the PSM rules located at 29 CFR Section 1910.119. However, the OSHA appellate determination was that an earlier violation, committed by the previous owner of the refinery, could not be attributed to the current owner. Both the Secretary of Labor and the owner and operator of the refinery appealed. The refinery argued that the boiler was not subject to the PSM rules because it did not contain highly hazardous chemicals. However, the court , after examining the plain language of the rule’s definition of “process,” determined that the boiler was part of a PSM-regulated unit. The Secretary’s argument was also rejected, the court finding that the attribution decision was reasonable.

Earthworks, et al. v. U.S. Department of the Interior
Finally, on October 26, 2020, the U.S. District Court for the District of Columbia held that the Department’s promulgation in 2003 and 2008 of two mining-related claims rules (which reversed an earlier administration’s policy) were consistent with the Mining Act of 1872 and FLPMA as well as NEPA and the Administrative Procedure Act. Both rules were held to be consistent with the relevant mining laws, and that NEPA’s “categorical exclusion applied so that the Department’s failure to produce an environmental assessment did not violate NEPA.”


America’s Conservation Enhancement Act, Public Law 116-182
This new law, enacted a few days ago, reauthorizes or establishes several important wildlife conservation and protection programs. The law authorizes the North American Wetlands Conservation Act at $60 million annually for five years; prohibits EPA from regulating the use of lead fishing tackle for five years; establishes a task force within the Fish and Wildlife Service to combat a “chronic wasting disease”; authorizes the National Fish Habitat Partnership at $7.2 million for five years; and reauthorizes the Chesapeake Bay Program for five years, starting at $90 million and increasing to $92 million annually.


Environmental Protection Agency (EPA)
The agency extends the new NPDES electronic reporting Phase 2 deadline. See 85 FR 69189 (November 2, 2020). EPA has been directed to modernize NPDES Clean Water Act reporting, replacing most paper-based NPDES reporting. Phase 1 is still being implemented, and the Phase 2 implementation deadline has been extended to December 21, 2025.

The Equal Employment Opportunity Commission (EEOC)
In response to Executive Order 13891, the EEOC has established new requirements for issuing EEOC guidance documents, effective December 2, 2020. See 85 FR 69167 (November 2, 2020).

Federal Railroad Administration
This DOT component has issued a final rule establishing special safety standards for the planned “Texas Central Railroad,” an electrified high-speed passenger service that will link—for now—Houston and Dallas. This notice, published at 85 FR 69700, also serves as a final ROD in compliance with NEPA. It is stated that the railroad will maintain an environmental compliance system, and its construction will not trigger any Clean Air Act issues.


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