Environmental & Safety Law Update

Transportation Department Proposes Big Changes to Rail Transportation of Crude Oil and Flammable Materials

Posted in Hazardous Materials, Transportation

By Ilana R. Morady and Craig B. Simonsen

Oil Tanker Train CarsThe U.S. Department of Transportation (DOT) yesterday released details of a “comprehensive rulemaking proposal to improve the safe transportation of large quantities of flammable materials by rail – particularly crude oil and ethanol.”

According to DOT Secretary Anthony Foxx “safety is our top priority, which is why I’ve worked aggressively to improve the safe transport of crude oil and other hazardous materials…. While we have made unprecedented progress through voluntary agreements and emergency orders, [this] proposal represents our most significant progress yet in developing and enforcing new rules to ensure that all flammable liquids … are transported safely.”

The statistics are stunning. Secretary Foxx related in a blog that “in 2008, producers shipped 9,500 rail-carloads of oil in the U.S.; by just last year, that number skyrocketed to 415,000 rail-carloads — a jump of more than 4,300 percent. Emphasis added.

The DOT rulemaking includes a Notice of Proposed Rulemaking (NPRM) and an Advanced Notice of Proposed Rulemaking (ANPRM). According to the Department, the NPRM is based on an ANPRM published by the Pipeline and Hazardous Materials Safety Administration (PHMSA) last September, and it reflects feedback from more than 152,000 commenters. 78 Fed. Reg. 54849 (September 6, 2013).

The NPRM proposes enhanced tank car standards, a classification and testing program for mined gases and liquids, and new operational requirements for high-hazard flammable trains (HHFT) that include braking controls and speed restrictions. HHFT is defined as a train carrying 20 or more tank carloads of flammable liquids. Specifically, within two years, the rule proposes to phase out the use of older “DOT 111 tank cars” for the shipment of packing group I flammable liquids, unless the tank cars are retrofitted to comply with new tank car design standards.

PHMSA is requesting comments on three options for the enhanced tank car standard requirements:

  1. Tank car option 1 would have 9/16 inch steel, would be outfitted with electronically controlled pneumatic (ECP) brakes and would be equipped with rollover protection.
  2. Tank car option 2 would also have 9/16 inch steel but would not require ECP brakes or rollover protection.
  3. Tank car option 3 is based on a 2011 industry standard and has 7/16 inch steel, and does not require ECP brakes or rollover protection.

In addition, the rule proposes new requirements for “rail routing risk assessments.” Under the proposal carriers would be required to perform a routing analysis for HHFT that would consider 27 safety and security factors, and select a route based on findings of the route analysis. The proposal also requests comments on three speed restriction options for HHFTs that contain any tank cars not meeting the enhanced tank car standards proposed under the rule. Also proposed are requirements that all HHFTs be equipped with alternative brake signal propagation systems.

The ANPRM seeks further information on expanding comprehensive oil spill response planning requirements for shipments of flammable materials. Once the NPRM and ANPRM are available in the Federal Register the Department will allow 60 days of public comment. “Given the urgency of the safety issues addressed in these proposals, PHMSA does not intend to extend the comment period.”

Energy Industry Group Notifies EPA Proposed Rules for Existing Electric Generating Units Fail to Make the Grade

Posted in Alternative Energy, CAA, Environmental Compliance

By Jeryl L. Olson and Craig B. Simonsen

In a letter this week to Administrator Gina McCarthy, the Partnership for a Better Energy Future, a coalition of business organizations provides initial feedback to the U.S. Environmental Protection Agency on its proposed carbon emissions regulations for existing electric generating units.

The National Association of Manufacturers serves as co-chair of the Partnership for a Better Energy Future, which comprises more than 160 members as well as state and local associations in 36 different states representing more than 80 percent of the U.S. economy.

The Partnership and its member organizations continue to review EPA’s proposal, but they believe that it will be disruptive to and is fundamentally incompatible with numerous practical and technical aspects of America’s electricity system. In fact, the letter suggests that EPA’s proposed rule could “eliminate the critical competitive advantage that affordable and reliable electricity provides to the American economy.”

In the letter the Partnership highlights five “high-level issues” that are representative of its detailed objections to EPA’s proposal:

  1. Electricity price increases and economic impacts. While EPA’s proposal must be thoroughly and independently analyzed to better understand its costs and electricity market implications, it is clear that the rule presents a significant threat to American jobs and the economy. EPA itself estimates that its rule will increase electricity prices between 6 and 7 percent nationally in 2020, and up to 12 percent in some locations.
  2. Rule structure and scope. EPA is pursuing a regulatory standard on one industry source (fossil-fuel power plants) based on potential actions taken well beyond the source’s physical location and controlling authority, and in many cases by entities that are not directly subject to regulation under section 111 of the Clean Air Act.
  3. Technological achievability. EPA has asserted that each of the individual building block targets assigned to states are based on “reasonably achievable rather than maximum performance levels.” However, “EPA is basing enormously impactful mandates on technology assumptions that have yet to be demonstrated as achievable at a reasonable cost and in some cases achievable at any cost.”
  4. Follow-on regulations. EPA’s regulations on power plants are only the first step of the Administration’s broader greenhouse gas regulatory agenda. As the agency has committed to a suite of follow-on rules, “many Partnership member organizations will be impacted twice—both as electricity customers and also as industries ‘next in line’ for subsequent rules that EPA has committed to pursuing.”
  5. Process and timeline. States and stakeholders continue to struggle to interpret and react to the rule’s more than 1,600 pages of highly technical materials. Despite this ongoing confusion, the agency has scheduled public hearings in only four locations [and beginning next week!], and has provided few if any opportunities for stakeholders and other interested parties to publicly ask the agency direct questions regarding the design and potential impacts of its rule.

The Partnership has requested, in response to its issues, that the Agency hold additional public hearings on the rule in order to enable a greater number of citizens and stakeholders representing a broader range of viewpoints and geographic locations to provide input on the rule. More importantly, it asks that some component of the public meetings be interactive, so that impacted stakeholders can ask EPA direct questions regarding the intent and implications of its proposed rule. Also, the Partnership asks that EPA extend the comment period by at least 60 days to ensure that affected stakeholders have sufficient time to assess the rule and consider feedback provided at the public hearings.

At this time, the EPA will accept public comments on the Plan until October 16, 2014. The Agency currently intends to hold four public hearings across the country during the week of July 28, 2014. The President had directed EPA to issue the final rule by June 2015.

OSHA Holding National Advisory Committee Workgroup Meeting on Temporary Worker Issues

Posted in OSHA Compliance

By Brent I. Clark and Craig B. Simonsen

The OSHA National Advisory Committee Workgroup will meet to continue its discussion of issues relating to the protection of temporary workers.

The Workgroup will be discussing issues that include perceived gaps in workplace protection for temporary workers, differences between temporary workers and contract workers, and joint responsibility of host employers and staffing agencies. The purpose of the meeting is to enable and equip the Workgroup to develop recommendations for the National Advisory Committee to consider in OSHA’s ongoing regulatory mission.

We had blogged previously about OSHA’s recent emphasis on temporary workers. For instance, Administrator David Michaels published an op-ed piece on the topic. This was followed by the Agency’s publication of its first in a series of “Temporary Worker Initiative Guidance Documents,” this one on injury and illness recordkeeping requirements. OSHA had announced the temporary worker initiative in a memorandum last year. See our detailed analysis of the initiative in this article on “All Employees Are Created Equal: OSHA’s New Initiative on Temporary Employees.”

All staffing agencies and employers utilizing temporary workers should take heed. The temporary employee initiative will be another tool employed by the Agency in its mission of imposing additional obligations on host employers to ensure that all employees, temporary or full time, are provided adequate health and safety training and protected from unsafe working conditions. Thus, host employers should more closely scrutinize their use of temporary employees and whether those employees are receiving sufficient training and protection. The attention of federal and state agencies and lawmakers is on this issue and employers should be taking steps to ensure that all employees, whether they are full time or temporary, are aware of and properly protected from workplace hazards.

The OSHA Workgroup meeting will take place on July 28, 2014, in Washington, DC. The meeting is open to the public.

Avoid the Summer Heat! Sweat the Details of California’s “Cool-Down” Periods and Avoid the Burn of Wage and Hour Class Litigation

Posted in California, Class Action, OSHA Compliance, OSHA Litigation

By Geoffrey C. Westbrook and Joshua M. Henderson

Just when one might have thought California employment law couldn’t get any stickier for employers, in January 2014 the California Legislature turned up the heat by expanding meal and rest break penalty provisions. Now there’s a new penalty for failure to provide “cool-down,” or recovery, periods to prevent heat illness.

Before, heat illness prevention laws were enforced only by the limited resources of Cal-OSHA. Now, newly amended Labor Code Section 226.7 authorizes private enforcement through class, individual, and multi-plaintiff actions, as well as by the DLSE. Monetary incentives, in addition to ambiguities on many aspects of the law, will likely trigger increased Cal-OSHA enforcement and new litigation, just as the remedies for meal and rest break violations have produced a heat wave of class action litigation. Talk about a scorcher!

But What is a “Cool-down” Period? California employers with “outdoor places of employment” must implement a heat illness prevention program, including allowing and encouraging employees to take a “cool-down rest in the shade for a period of no less than five minutes at a time when they feel the need to do so to protect themselves from overheating.” During these periods, employees must get continuous access to shade and drinking water.

While these obligations existed for almost a decade under Cal-OSHA’s oversight, private enforcement officially began January 1, 2014 with the amendment to Labor Code Section 226.7. Now, “an employer shall not require an employee to work during a meal or rest or recovery period” required by law. As a penalty, employers must pay non-exempt employees one additional hour of pay for each workday in which a meal or rest or recovery period is not provided. Penalties are cumulative, meaning it is thus now possible under Section 226.7 for an employer to incur three penalties in a given workday for each affected employee.

So, What are “Outdoor Places of Employment?” This term, not defined in the regulations, may seem self-evident. “Outdoor” really means “out of doors” in an open air environment. But how much time must one spend out of doors to make it a “place” of employment? Reasonable minds could differ here: is 50% of a workday spent outdoors sufficient to trigger the law, or will a mere 25% suffice?

Recovery Periods: A “Hotbed” for Litigation? There are no published decisions yet on cool-down periods, and the law is ripe with ambiguities that only litigation will resolve. These uncertainties, and the prospect of penalties that will be very large when considered on a cumulative basis, may prompt private litigants to initiate civil actions against unsuspecting employers in industries with some outdoor work that haven’t traditionally been the focus of enforcement initiatives. These industries may include engineering, warehousing, carwash, outdoor recreation, automotive sales, security, country clubs, valets, summer camps, and janitorial businesses.

The following are areas where employers may face “cooling down” challenges:

  • Proper Access to Sufficient Amounts of Shade. The regulations provide detailed rules on the amount of shade provided to employees during a recovery period, the location of shade to work areas, and access to shade in days even when outdoor temperatures do not exceed 85 degrees. Failure to meet these requirements may lead to a claim that the employer failed to provide recovery periods within the meaning and intent of Cal-OSHA regulations.
  • Frequency and Length of Recovery Periods. Employees must be permitted to take a cool-down rest “when [employees] feel the need to do so to protect themselves from overheating.” Unlike meal and rest periods, the law does not identify the minimum number of recovery periods an employee must receive in a workday or if recovery periods can be scheduled to avoid business interruption. And, while recovery periods can be “no less than five minutes,” the regulation does not provide guidance on the maximum duration of a recovery period: must employers, for instance, provide a paid 30-minute work-free recovery period to all employees upon request?
  • Failure to “Encourage” Recovery Periods. Heat illness prevention regulations go beyond meal and rest break laws and require employers to “encourage” employees to take recovery periods. Other than satisfying the law’s training and written policy and procedure requirements, it is unclear what efforts employers must take to encourage recovery periods. So a failure to “encourage” recovery periods might also lead to a Section 226.7 claim.

Workplace Solutions. As a threshold issue, California employers in industries not expressly subject to heat illness prevention laws should carefully consider whether their operations may be construed as an “outdoor place of employment.” Employers with “outdoor places of employment” should review their policies, record-keeping practices, and training to ensure compliance and proper integration with recovery period and other heat illness prevention requirements. Such precautions will help keep employers burn-free for the remaining warm months of the year.

Energy Insights: An Update from the Second Quarter of 2014

Posted in Alternative Energy, Environmental Compliance, Environmental Litigation

By Robert J. Carty, Jr., Dennis A. Clifford, Philip L. Comella, A. Donald Lepore III, Esteban Shardonofsky, Clark Smith

We have just published Seyfarth Shaw’s Energy Insights Newsletter, prepared by the Energy and Clean Technologies team. It covers important developments in the second quarter of 2014 for the energy industry, including: 1) the Department of Energy’s draft loan guarantee solicitation for clean energy projects; 2) the U.S. Environmental Protetcion Agency’s proposed Clean Power Plan; 3) the U.S. Supreme Court’s recent decision in Utility Air Regulatory Group v. EPA; and 4) the EEOC’s recent crackdown on the Genetic Information Nondiscrimination Act violations and related implications for the energy industry.

Let us know if you would like further information on any of these topics.

OSHA Delays Compliance Date — Interim Enforcement Policy for New Rule on Electric Power Generation, Transmission, and Distribution

Posted in OSHA Compliance

By James L. Curtis and Craig B. Simonsen

We had previously blogged on OSHA’s adoption of its new 428 page updated “Electric Power Generation, Transmission, and Distribution” rules. 79 Fed. Reg. 20316 (April 11, 2014). It has now issued an “Interim Enforcement Policy” for the new rules.

According to Dr. David Michaels, the Assistant Secretary of Labor for Occupational Safety and Health, “electric utilities, electrical contractors and labor organizations have persistently championed these much-needed measures to better protect the men and women who work on or near electrical power lines.” OSHA believes that “this long-overdue update will save nearly 20 lives and prevent 118 serious injuries annually.”

As we noted earlier, the updated standards included new or revised sections for host and contract employers to share safety-related information with each other, and with employees. Sections for improved fall protection for employees working from aerial lifts and on overhead line structures are included. In addition, the standards adopt revised approach-distance requirements “to better ensure that unprotected workers do not get dangerously close to energized lines and equipment.” The final rules also add new requirements meant to protect workers from electric arcs.

The new Interim Enforcement Policy delays enforcement of most of the new requirements for employers who are complying with the existing General Industry rule. Under the Interim Enforcement Policy the new standards, which were to become effective on July 10, 2014, but for enforcement purposes, OSHA “will accept compliance with the prior version of 29 CFR 1910.269 (i.e., the version of that standard that was in effect on April 11, 2014) as compliance with revised 29 CFR 1910.269 and 29 CFR 1926, Subpart V until October 31, 2014.”

Accordingly, employers should examine their existing policies, procedures, and training programs to ensure that they meet the October 31, 2014, compliance deadline.

EPA Proposes Updated Methane Limits for New Municipal Landfills and Requests Comment on Whether and How to Update Emissions Guidelines for Existing Landfills

Posted in CAA, Environmental Compliance, Landfill Gas, RCRA

By Patrick D. Joyce

The U.S. Environmental Protection Agency (EPA) today released a proposed rule that would update air standards for new municipal solid waste  landfills (landfills). 79 Fed. Reg. 41796 (July 17, 2014).

The Whitehouse had, earlier this year, issued an update to President Obama’s Climate Action Plan “Strategy to Reduce Methane Emissions.” The update specified that in the summer of 2014, “the EPA will propose updated standards to reduce methane from new landfills and take public comment on whether to update standards for existing landfills.” The Agency has met that action item with these rulemaking publications.

Methane is a greenhouse gas with a global warming potential twenty-five times that of carbon dioxide.  As such, reducing overall methane emissions was listed as a priority in the President’s Climate Action Plan.  In 2012, landfills accounted for eighteen percent of all methane emissions in the United States.

The proposed rule targets the release of methane from landfills and would require landfills constructed after the publication date of the proposed rule (July 17, 2014) to capture two-thirds of their methane and other air toxics emissions by 2023.  The current rules require new landfills to capture just thirteen percent of such emissions.

In addition, EPA also issued an Advance Notice of Proposed Rulemaking seeking public input on whether it should update emissions guidelines for existing landfills, including methane emissions limits, and how to implement any suggested updates. 79 Fed. Reg. 41772 (July 17, 2014).

Stay tuned for a deeper analysis of the proposed rule.

OSHA Administrator Blogs on Retail Industry’s Need for Workplace Violence Training and Protections

Posted in OSHA Compliance, Workplace Violence

By James L. Curtis and Craig B. Simonsen

The teenage summer job working at the local store is a rite of passage in most communities. Almost everyone has held a summer job at some point in their life.  However, given the disturbing rise in workplace violence, teenagers can be swept up in hostile situations and end up facing down angry, sometimes violent customers.

This has resulted in workplace injuries and even fatalities that have captured the attention of OSHA officials. In a blog last week, OSHA Administrator Dr. David Michaels discussed the importance of training teens at work. Michaels cited to a study that found “that most teens had not been trained on how to respond to shoplifters or other threats of workplace violence.”

The Administrator noted that workers under the age of 25 are twice as likely to be injured on the job as older workers, and are often unaware of their workplace rights. The Massachusetts Coalition for Occupational Safety and Health study, which Michaels was citing to, concluded that “this high rate of injury can be explained in part by teens tending to be hired into industries that have a high risk for injury, such as restaurants, and that young workers are often provided insufficient health and safety training.” Emphasis added.

Michaels spelled out in his blog out that teens should receive training about workplace violence — “especially not to chase shoplifters.” Employers should establish workplace violence prevention programs, provide adequate security, including cameras and alarms, and “never allow teens to work alone.” He indicated that employers at risk are retail, food service, maintenance, and other industries teens are likely to hold jobs in.

Employers in these industries should take notice of Michaels’ blog, as we may be certain that his OSHA inspectors may well be looking for these sorts of violations. Review your workplace violence prevention policies, training programs, and safety procedures now to see how they measure up to the Administrator’s stated “adequate” minimums.

EPA, OSHA, and DHS are Collaborating on Chemical Facility Safety and Security

Posted in Catastrophe Response, Chemical Safety, Emergency Planning, Environmental Compliance, OSHA Compliance

By James L. Curtis and Craig B. Simonsen

Representatives from the U.S. Environmental Protection Agency, the Occupational Safety and Health Administration, and the Department of Homeland Security spoke today at the Air and Waste Management Association’s Annual Conference, on their  collaboration on chemical facility safety and security.

The conference session speakers included Mathy Stanislaus, EPA’s Office of Solid Waste and Emergency Response, James Wulff, OSHA Region 9’s Assistant Regional Administrator, Enforcement Programs, and Todd Klessman, DHS’s Senior Policy Advisor for the Infrastructure Security Compliance Division.

We had blogged earlier this week about the EPA, OSHA, and DHS first joint Report for the President, “Actions to Improve Chemical Facility Safety and Security – A Shared Commitment.” June 6, 2014. The Report issued after recent catastrophic chemical facility incidents in the United States, which had, in August 2013, prompted President Obama to issue Executive Order 13650, Improving Chemical Facility Safety and Security. The EO was intended to enhance the safety and security of chemical facilities and reduce risks associated with hazardous chemicals to owners and operators, workers, and their neighboring communities.

The EO established a “Chemical Facility Safety and Security Working Group” to oversee the effort, which is tri-chaired by the EPA, DOL, and DHS, and included leadership and subject matter experts from many other federal departments and agencies. This their first Report summarized the Working Group’s progress, focusing on actions to date, findings and lessons learned, challenges, and priority next steps.

In his presentation Stanislaus reiterated and emphasized that industry must play a “critical role” in re-invigorating and participating in the Local Emergency Planning Committees (LEPC). The Working Group found the LEPCs vary considerably across the country, and in some areas don’t really even exist. When asked what facilities are to do when the LEPC doesn’t exist in their community, Stanislaus responded that the plant management have to step-in and fill that role — on an ongoing basis. It is a real problem. There is a need for plant management to “sit down with local government.”

Wulff noted that OSHA is taking steps to “modernize” its rules, citing to OSHA’s Request for Information on the Agency’s process safety management standard and other related chemical standards to determine, among other things, “whether these standards can, and should, be expanded to address additional regulated substances and types of hazards.” For instance, OSHA is considering a proposed rule for a process safety management standard for ammonium nitrate.

Klessman indicated that the sharing of information databases, like the DHS database of top screens, between the agencies, LEPCs, and first responders is critical and would facilitate getting needed, quality information to those that need it.

McCabe Addresses Supreme Court Decision and Other Topics – EPA is “Very Pleased”

Posted in CAA, Carbon Sequestration, Environmental Compliance

By Craig B. Simonsen

Janet McCabe, Acting Assistant Administrator, U.S. Environmental Protection Agency, discussed yesterday’s Supreme Court opinion, and other topics, while speaking before the Air and Waste Management’s Association’s Annual Conference today.

The Supreme Court

The Supreme Court yesterday ruled, in-part, that “EPA lacked authority to ‘tailor’ the Clean Air Act’s unambiguous numerical thresholds of 100 or 250 tons per year to accommodate its greenhouse-gas-inclusive interpretation of the permitting triggers.” As such, the Court said “Agencies must always ‘give effect to the unambiguously expressed intent of Congress’.”

While this might appear as a loss or set-back for the Agency, McCabe put a positive spin on it, saying that EPA is “very pleased” because the Court upheld EPA’s overall authority to regulate greenhouse gases under the Clean Air Act.  The Court allowed EPA to continue regulation of greenhouse gas emissions using Best Available Control Technology (BACT) for the so-called “anyway” sources (those that are required to obtain permits from EPA because they emit other covered pollutants ‘anyway’). The Court said, “EPA’s decision to require BACT for greenhouse gases emitted by sources otherwise subject to PSD review is, as a general matter, a permissible interpretation of the statute under Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837.” Utility Air Regulatory Group v. Environmental Protection Agency et al., No. 12–1146, __ US ___ (June 23, 2014).

The Economy

On other topics, McCabe quoted EPA Administrator Gina McCarthy, who, citing statistics, indicates that in the last forty years the Agency has reduced air pollution by 70 percent, while the nation’s economy has tripled. It is the Administration’s position that cleaning up the environment is good for the economy. The “success of the Clean Air Act” is its ability to grow industry while cleaning up the air we breathe.

Existing Power Plant Rules

On the recent proposed rule, known as the “Clean Power Plan,” to drastically cut carbon dioxide emissions from existing power plants across the United States by the year 2030, McCabe noted that the Agency merely proposed reasonable reductions across the country, and has left the implementation of the standards and reductions to the states.

The Agency had received over 100,000 public comments on the proposed rule before it was even published.

New Power Plant Rules

McCabe noted that the Agency received over 2.5 million public comments on the proposed rule for new power plants. She said that the Agency will “spend a lot of time” reviewing about 11,000 of the public comments.

Transportation Rules

McCabe indicated that EPA is working to develop a proposal, to publish by March 2015, that will further regulate fuel use in heavy duty fleets. The rule is scheduled for adoption by 2016.

The Agency is also looking at further regulation of hydrofluorocarbons. EPA is working with the auto manufacturers to move the industry to using better, lower emission substitutes. EPA is working on and preparing new rules on this.

Landfill Gas Rules

As part of the President’s Clean Air Plan, he asked that the Agency develop a methane strategy. In response, McCabe said that landfill gas rules are up for revision, and that methane is going to be reviewed closely, with changes anticipated.

Oil and Gas Industry

McCabe indicated that the Agency had recently released a series of white papers on hydraulic fracturing in the oils and gas industry. She said that the comments they have been receiving on the white papers have been mixed, so the Agency is watching that, and will “see where it goes.”