Environmental Litigation and Regulation

EPA

By Lauren Rucinski

On May 4, 2017, Momentive Performance Materials Silicones, LLC (“MPM”) agreed to a settlement with the United States, on behalf of the Environmental Protection Agency (“EPA”), and the State of New York, that requires MPM to pay $1.5 million in fines. The action was brought against MPM pursuant to Sections 113(a) and (b) of the Clean Air Act (“CAA”) and Sections 3008(a) and (g) of Resource Conservation and Recovery Act (“RCRA”) and sought civil penalties for violations of federal law and federally-approved provisions of New York state law. The claims arise from MPM’s ownership and operation of a rotary kiln incinerator at its Waterford, New York facility.

MPM manufactures silicone products from basic raw materials to a wide variety of finished products. According to the settlement agreement, MGM bypassed an automatic shut off system in order to allow the incinerator to operate outside of its permitted limits thousands of times within a two year period. As a result, the incinerator released hazardous substances to the environment in violation of its operating permits and federal and New York state law. MPM also failed to continuously monitor certain operating parameters during those times of incinerator bypass, in derogation of its Title V and RCRA permits. MPM also allowed the incinerator to discharge carbon monoxide (“CO”) in excess of the permit limits at least 13 times during a 7 month period in 2007, constituting a violation of its Title V and RCRA permits, Hazardous Waste Combustor National Emissions Standards for Hazardous Air Pollutants (“NESHAP”) rules, and New York state law, which incorporates the NESHAP standards in its permitting program. MPM also falsely certified that it was in compliance with NEHSAP and Title V permit requirements in its 2006 Title V Annual Compliance Certification.

The EPA is authorized to initiate a civil enforcement action for injunctive relief and civil penalties of up to $32,500 per day for each violation. Similarly, New York state law authorizes its Department of Environmental Protection to initiate civil administrative and judicial enforcement actions for civil penalties for up to $15,000 per violation and $15,000 per day for each day the violation continues and, for a second and any subsequent violation, up to $22,500 per violation and $22,500 per day for each day the violation continues. Based on the various violations of CAA, RCRA, and New York State laws and regulations, MPM agreed to pay $1.5 million in fines, with half going to the state of New York and half to the federal government. The large fine is likely due in part to MPM’s intentional bypass of its automatic shut off system and its falsifying of its annual compliance report.

DEQ

By Tokesha Collins-Wright

The Louisiana Department of Environmental Quality (LDEQ) derives its enforcement power and ability to assess penalties from La. R.S. §§ 30:2025, 30:2050.2, and 30:2050.3. The typical chronology for the administrative enforcement process is that LDEQ will first issue a notice of potential penalty (NOPP), compliance order (CO), or consolidated compliance order & notice of potential penalty (CCO/NOPP) for alleged violations of the Louisiana Environmental Quality Act (LEQA). The Respondent then has the opportunity to appeal or settle the matter. The CCO/NOPP has typically been divided into four sections:

  1. Findings of Fact;
  2. Compliance Order;
  3. Further Notice, and;
  4. Notice of Potential Penalty.

Recently, however, LDEQ added a new section to its CCO/NOPPs entitled, “Request to Close.” The main effect of this new section is to allow the Respondent to indicate whether there is any interest in discussing settlement and, if so, to present the Department with a settlement offer.

The new Request to Close section is divided into three parts:

  1. Statement of Compliance;
  2. Settlement Offer, and;
  3.  Certification Statement.

The Statement of Compliance portion contains a checklist for the Respondent to ensure that it has provided the LDEQ with all of the information that was requested in the Compliance Order section. The Settlement Offer portion is optional and allows the Respondent to indicate whether there is any interest in entering into settlement negotiations with the LDEQ, with the understanding that the Department has the right to assess civil penalties based on LAC 33:I.Subpart I.Chapter 7. The section also provides an opportunity for the Respondent to make an offer of settlement on the form itself to close the matter out. If the Respondent chooses this option, then the Department will review the settlement offer and will later notify the Respondent as to whether or not the offer has been accepted. Additionally, if the Respondent decides to include a Beneficial Environmental Project (BEP) in its settlement offer, then the Respondent can provide a justification and description of its proposed BEP. The third and final portion of the Request to Close is the Certification Statement. In this section, the Respondent certifies that, among other things, based on reasonable inquiry, the information being provided to the Department is true, accurate, and complete.

 

whistle

By Erin L. Kilgore

The Louisiana Environmental Whistleblower Statute, La. R.S. 30:2027, protects employees who, in good faith, disclose, or threaten to disclose, acts they reasonably believe to be in violation of an environmental law, rule, or regulation.  It also protects employees who testify or provide information to a public body about such acts.  An employer may not retaliate against an employee who engages in activity protected by the statute.  The statute provides for the trebling of certain damages awarded to a prevailing plaintiff.

Last week, the Louisiana First Circuit Court of Appeal reversed a $750,000 judgment against the Louisiana Department of Natural Resources (“DNR”), finding that the plaintiffs were independent contractors of the State – not employees – and, therefore, outside the scope of the statute’s protection.

Earlier in the suit, the jury found that the plaintiffs were employees of DNR; that they reported what they believed to be environmental violations; and as a result of their reports, DNR retaliated against them.  The jury awarded the plaintiffs $250,000 in lost wages, which was then tripled to $750,000 by the statute’s trebling provision.  On appeal, the court found that the plaintiffs were independent contractors, rather than employees of DNR.  As a result of this finding, the plaintiffs were outside the scope of La. R.S. 30:2027, and the case was dismissed.

Additional information can be found here  and a copy of the decision can be found here.

 

louisiana

By R. Lee Vail, P.E., Ph.D.

At the very end of 2016, the Fifth Circuit Court of Appeals vacated two Occupational Safety and Health Administration (“OSHA”) citations for alleged violations of Process Safety Management (“PSM”) regulations. In that case, the Court held that OSHA was barred from issuing a citation for the failure to act on Process Hazard Analysis (“PHA”) findings/recommendations that remained open beyond the six month statute of limitations provided in 29 U.S.C.A. §658(c) of the Occupational Safety Health Act of 1970. See, Delek Ref., Ltd. v. Occupational Safety & Health Review Comm’n, 845 F.3d 170, 179 (5th Cir. 2016).

Conversely, violations of the Clean Air Act are recognized to be subject to the general federal five-year statute of limitations established by 28 U.S.C. § 2462. See Nat’l Parks & Conservation Ass’n, Inc. v. Tennessee Valley Auth., 502 F.3d 1316, 1322 (11th Cir. 2007). Consistent with this, the “duration of violation” factor under the Environmental Protection Agency (“EPA”) “Combined Enforcement Policy for Clean Air Act Sections 112(r)(1), 112(r)(7) and 40 C.F.R. Part 68 ” reaches its maximum at 60 months. At first glance, it would appear that the Delek decision might have little or no impact on RMP penalties, but that would be incorrect.

Some RMP violations are not continuing violation.

In considering PHA recommendations, the Fifth Circuit concluded:

Just as a single violation “occurr[ed]” in Volks when the company failed to create the records within the prescribed time-period, so too a violation of subsections (e)(5) and (o)(4) “occur[s]” within the meaning of Section 658(c) when an employer does not “promptly” or “timely” do as Section 1910.119 directs.

Id. at 176–77.

RMP has the exact same requirements, albeit at 40 C.F.R. 68.67(e) and 40 C.F.R. 68.79(d). Aligning RMP with PSM based on Delek, no duration of violation factor should apply to violations of §68.67(e) or §68.79(d). Further, this ruling could apply to other RMP provisions that only require compliance by a particular date. For example, this case strengthens the argument that the failure to conduct a specific Management of Change (“MOC”) is a one day violation and not subject to “duration of violation” factor. Delek could similarly affect other RMP requirements.

Prior PHA’s might not be a basis of violation.

Consider the following example. A facility conducts a PHA in 2010, and a second five years later in 2015. Also assume that a recommendation from the 2010 PHA remains open seven years later in 2017. Any single violation based on the 2010 PHA is time barred five years after the facility failed to act promptly or timely. If for argument sake, prompt and timely is considered two years, the five year statute of limitation bars enforcement of the omission by 2017. Further, the EPA might have issues with citing a violation of the open issue based on the 2015 PHA as it may not yet be past the prompt or timely criteria.

Time will tell to what degree Delek will impact the existing RMP penalty policy. Regardless, it could have an impact.

fifth

By Chase Zachary

On April 18, 2017, the U.S. Court of Appeals for the Fifth Circuit released a published opinion in Guilbeau v. Hess Corp.[1] The court affirmed the application of Louisiana’s subsequent purchaser doctrine to claims for environmental damages allegedly caused by activities of a former mineral lessee prior to the date that the plaintiff owned the property. Although the Fifth Circuit previously reached a similar conclusion in an unpublished decision,[2] Guilbeau is the court’s first precedential opinion addressing the subsequent purchaser doctrine.

As discussed on Kean Miller’s Louisiana Law Blog, here[3] and here,[4] the subsequent purchaser doctrine bars a plaintiff’s claims for property damages that occur prior to the plaintiff’s ownership of the property. The Louisiana Supreme Court provided a “thorough analysis”[5] of the doctrine in Eagle Pipe & Supply, Inc. v. Amerada Hess Corp.[6] There, the court “clarified that damage to property creates a personal right to sue, which unlike a real right, does not transfer to a subsequent purchaser ‘[i]n the absence of an assignment or subrogation.’”[7] However, plaintiffs have argued that the Eagle Pipe opinion did not address whether the subsequent purchaser doctrine applies “to fact situations involving mineral leases or obligations arising out of the Mineral Code.”[8]

The facts of Guilbeau are straightforward. Defendant Hess Corporation’s (“Hess’s”) predecessors operated until 1971 on the property-in-suit under several mineral leases.[9] All of those leases expired in 1973.[10] The plaintiff purchased the property-in-suit in 2007.[11] The “sale did not include any assignment of rights to sue for pre-purchase damages.”[12] After the plaintiff sued Hess for alleged contamination to the property, the federal district court granted Hess’s motion for summary judgment and dismissed the plaintiff’s claims based on the subsequent purchaser doctrine.[13] The Fifth Circuit affirmed.[14]

Making an “Erie guess” of how the Louisiana Supreme Court would decide the issue,[15] the Fifth Circuit identified a “clear consensus . . . among all Louisiana appellate courts that have considered the issue . . . that the subsequent purchaser rule does apply to cases . . . involving expired mineral leases.”[16] After tracing those Louisiana appellate decisions,[17] the Court found “no occasion to depart from the above-described precedent” and held that the subsequent purchaser doctrine barred the plaintiff’s claims.[18] The Court also noted that “the Louisiana Supreme Court has had multiple opportunities to consider this issue and has repeatedly declined to do so.”[19] Notably, the Fifth Circuit declined to certify the subsequent purchaser issue to the Louisiana Supreme Court on the basis that “[w]hen, as here, the appellate decisions are in accord, the law is not unsettled, and certification is unwarranted.”[20]

The Fifth Circuit is simultaneously considering a companion case, Tureau v. Hess Corp.[21] That suit involves an identical issue—i.e., whether the district court correctly applied the subsequent purchaser doctrine to dismiss claims for alleged property damage against former mineral lessees. The Fifth Circuit previously held Tureau in abeyance pending its decision in Guilbeau, and a decision in Tureau is expected shortly.

The Fifth Circuit’s Guilbeau opinion affirmatively resolves, for Louisiana federal courts, whether the subsequent purchaser doctrine applies to property damage claims against current and former mineral lessees. The decision accordingly provides much-needed certainty to both property owners and oil and gas operators involved in “legacy” litigation.

_____________________________

[1] No. 16-30971, — F.3d –, 2017 WL 1393709 (5th Cir. Apr. 18, 2017), http://www.ca5.uscourts.gov/opinions/pub/16/16-30971-CV0.pdf

[2] See Broussard v. Dow Chem. Co., 550 F. App’x 241 (5th Cir. 2013).

[3] http://www.louisianalawblog.com/coastalwetlands-issues/louisiana-supreme-court-expands-judicial-limitations-on-landowner-tort-claims/.

[4] http://www.louisianalawblog.com/energy/louisiana-second-circuit-court-of-appeals-upholds-application-of-subsequent-purchaser-doctrine-in-oilfield-legacy-case/.

[5] Guilbeau, 2017 WL 1393709, at *2.

[6] 79 So. 3d 246 (La. 2011).

[7] Guilbeau, 2017 WL 1393709, at *2 (quoting Eagle Pipe, 79 So. 3d at 279) (emphasis in original).

[8] 79 So. 3d at 281 n.80.

[9] Guilbeau, 2017 WL 1393709, at *1.

[10] Id.

[11] Id.

[12] Id.

[13] Id.

[14] Id.

[15] Id.

[16] Id. at *2.

[17] Id. at *2-4.

[18] Id. at *4.

[19] Id.

[20] Id.

[21] No. 16-30970.

air

By Maureen N. Harbourt

EPA is required by Section 109(d) the Clean Air Act to review the adequacy of each National Ambient Air Quality Standard (“NAAQS”) every five years to determine if new scientific evidence justifies a change to the standard.  The current primary[i] NAAQS for nitrogen dioxide (“NO2”) is 53 ppb annual mean and 100 ppb NO2 as 98th percentile of 1-hour daily maximum concentrations, averaged over 3 years.  The annual average was first adopted in 1971, and was not changed during (overdue) reviews completed in 1985 and 1996.  In the next completed review in 2010, EPA added the 1 hour NO2 NAAQS to the standard based on a conclusion that the annual standard alone was not protective enough due to potential health impacts associated with short term exposures.[ii]  The 2010 review also indicated that there was a lack of data concerning near roadway exposures, which was of concern given that 34% of NO2 emissions are estimated to be generated from roadway vehicles.  Thus, the 2010 review led to EPA requiring states to install near-roadway monitors in urban areas during the 2014-2017 period.

EPA has just completed a final Policy Assessment reviewing the adequacy of the 2010 NAAQS and has concluded that no change to the existing standard is recommended.  82 Fed. Reg. 17947, April 14, 2017. The EPA Clean Air Science Advisory Committee (“CASAC”) also recommended no change to the standard.  The EPA’s Policy Assessment indicated that the additional roadway monitors installed as a result of the 2010 NAAQS rule have not been gathering data for a sufficient period (only 1-2 years) to fully evaluate such information, although the data that was available showed higher NOx concentrations near roadways than at nearby non-roadway monitors.[iii]  The Policy Assessment is the last step of the periodic NAAQS review process before any final EPA decision to revise or not revise the existing standards. It considers the Integrated Science Assessment, the Risk/Exposure Assessment, and the advice of the CASAC.

________________________________________________

[i] The primary NAAQS are set at a level to protect human health with an adequate margin of safety.  A secondary NAAQS is set at a level to protect human welfare, including decreased visibility and damage to animals, crops, vegetation, and buildings.  The secondary NAAQS for NO2 is currently equivalent to the annual primary standard (53 ppb annual mean).  EPA has recently completed an integrated science assessment for the secondary standards for NO2, sulphur oxides and particulate matter and has requested that the CASAC review that assessment.  82 Fed. Reg. 15701, March 30, 2017.

[ii] The EPA’s decision to add the 1-hour NO2 NAAQS was upheld in American Petroleum Institute v. Environmental Protection Agency, 684 F.3d 1342 (D.C. Cir. 2012), cert. den. 133 S.Ct. 1724 (2013).

[iii] The full EPA Policy Assessment is available here.

 

 

 

refinery1a

By R. Lee Vail, P.E., Ph.D.

At the very end of 2016, the Fifth Circuit Court of Appeals vacated two Occupational Safety and Health Administration (“OSHA”) citations against an employer that allegedly failed to timely resolve open findings and recommendations from Process Hazard Analysis (PHA). The 2008 citation related to multiple PHAs that occurred over a decade (with the last being 2005) and a 2005 compliance audit. In doing so, the Court narrowed these process safety management requirements to no more than addressing and resolving the findings in a timely manner:

Neither Section 1910.119(e)(5) nor (o)(4) mandates that the employer actually remedy the issues addressed in a PHA or audit recommendation. See 29 C.F.R. § 1910.119(e)(5), (o)(4). Subsection (e)(5) directs the employer to “address” the findings from a PHA and to “resolve[ ]” them in a timely manner. Likewise, subsection (o)(4) directs employers to “determine and document an appropriate response” to the audit compliance findings.

Delek Ref., Ltd. v. Occupational Safety & Health Review Comm’n, 845 F.3d 170, 178 (5th Cir. 2016)

This case followed AKM LLC dba Volks Constructors v. Sec’y of Labor, 675 F.3d 752 (D.C. Cir. 2012), where the Court concluded the obligation to create a record was a onetime event and that OSHA was barred from citing a facility six months after that record should have been created. In considering PHA recommendations, the Fifth Circuit concluded:

Just as a single violation “occurr[ed]” in Volks when the company failed to create the records within the prescribed time-period, so too a violation of subsections (e)(5) and (o)(4) “occur[s]” within the meaning of Section 658(c) when an employer does not “promptly” or “timely” do as Section 1910.119 directs.

Id. at 176–77.

OSHA’s argued that the “address and resolve” obligation was continuous and that any failure was a continuing violation. Arguably, if the violation is continuing, a violation accrues on the first non-timely day and every day thereafter. According to the holding in this case, six months after that first non-timely day, OSHA is barred from issuing a citation. So what is timely? The Fifth Circuit noted that OSHA has historically placed this timely obligation at 1 – 2 years.

The Secretary has, on at least one occasion, taken the position that a response to PHA and audit recommendations is “timely” when it is done within “one to two years.” See Secretary of Labor v. BP Prods. N. Am., Inc., 2013 WL 9850777, at *37 (OSHRC Aug. 12, 2013). We need not address this issue here, however, because the Secretary has not argued that the citations underlying Items 4 and 12 would be timely under the interpretation of Section 658(c) we now adopt, even if Section 1910.119’s references to “timely” or “prompt” action afforded an employer more than one or two years to resolve open PHA or audit recommendations.

Id. at 177.

As such, if two years is timely, a citation issued within two years of the PHA recommendation would be premature; a citation issued after two and a half years would be barred. Such will likely place OSHA in a quandary . . . in order to argue that similar PHA citations are not time barred, OSHA may need to provide more time to “address and resolve.” Even then, an action becomes barred six months after whatever OSHA defines as timely. Only a six month window exists where OSHA can issue a citation with the big question being “where does the window start?”

This decision could have a much broader effect. For example, is the failure to conduct a pre-startup review no longer citable six months after startup?

chemical_plant

By R. Lee Vail, P.E., Ph.D.

The EPA received three petitions asking it to delay and reconsider amendments to the RMP rule. First, the “RMP Coalition” submitted a petition dated February 28, 2017. On March 13, 2017, the Chemical Safety Advocacy Group also submitted a petition, followed by a third petition from a group of eleven states. On March 13, 2017, Scott Pruitt, Administrator of the EPA, convened a proceeding for reconsideration of the RMP rule amendments and signed a letter that administratively delayed the effective date of the rule for 90 days.

On April 3, 2017, EPA proposed to further delay the effective date of changes to the rule until February 19, 2019. 82 Fed. Reg. 16146 (Apr 3, 2017). In proposing extra time to conduct the reconsideration, the EPA determined “three months to be insufficient to complete the necessary steps in the reconsideration process.” 82 Fed. Reg. at 16148. The EPA noted that it would take time to “prepare the necessary comment solicitations to help focus commenters on issues of central relevance to [their] decision-making.” Id. Further “a separate Federal Register notice published in the near future will specifically solicit comment on the range of issues under reconsideration.” 82 Fed. Reg. at 16149.

Such a further delay would have the effect of also delaying provisions that don’t kick in until later years. “Compliance with all of the rule provisions is not required as the rule does not become effective.” Id. EPA would later “amend the compliance dates as necessary when considering future regulatory action.” Id.

Comments are due by May 19, 2017 on the proposed delay to February 19, 2019.

louisiana

By Tokesha Collins-Wright and Maureen N. Harbourt

The general rule under Louisiana law has long been that any activity that results in emissions of air pollutants must obtain an air permit from the Louisiana Department of Environmental Quality (LDEQ) unless a specific exemption applies. There are a few broad statutory and regulatory exemptions, such as activities conducted on residential property (with minor exceptions), the distribution or application of pesticides, and emissions from mobile sources such as automobiles, trucks, boats and aircraft, controlled burning of agricultural by-products in the field or of cotton gin agricultural wastes or controlled burning in connection with timber stand management, or pastureland or marshland in connection with trapping or livestock production. The most useful exemption for businesses and non-residential activities has long been the “Small Source Exemption” found in LAC 33:III.501.B.2.d, which exempts any source that emits less than the Minimum Emission Rate of any Louisiana Toxic Air Pollutant and less than 5 tons per year of any single “criteria pollutant” and 15 tons per year of all criteria pollutants in the aggregate.

Until this year, there was no specific requirement for sources exempt from permitting under this Small Source Exemption to document or keep records to verify they met the conditions of the exemption. On March 20, 2017, LDEQ published notice of a final rule amending the Small Source Exemption rule to require that either the owner or the operator of a source claiming exemption under this provision to: 1) make a written determination assessing its maximum potential annual emissions to show the exemption criteria are met; 2) keep such records available for LDEQ inspection; and 3) make a revised determination and document such any time there is a modification to the source or activity that could change the initial calculations, such as an increase in production rate or an increase in hours of operation. When determining the maximum potential emissions, the owner or operator may take into account any physical limitation on the capacity of a source to emit an air pollutant, including air pollution control equipment that is used.

Unfortunately, LDEQ made the rule effective immediately upon promulgation (the March 20, 2017 Louisiana Register publication date), and did not provide a time period for allowing facilities to prepare such documentation. Thus, sources relying on the Small Source Exemption should take steps to prepare such documentation as soon as possible.

A list of the Louisiana Toxic Air Pollutants and their Minimum Emission Rates can be found in Table 51.1, LAC 33:III.Chapter 51.[i] Criteria air pollutants are Volatile Organic Compounds (VOC), Nitrogen Oxides (NOx), Carbon Monoxide (CO), Sulfur Dioxide (SO2), Particulate Matter (PM10 diameter < 10 microns and PM2.5 diameter < 2.5 microns), and Lead. Many sources may need a consultant to assist with preparation of such calculations; however, a standard reference is the Environmental Protection Agency’s (EPA) publication AP-42, A Compilation of Air Emission Factors,”[ii] which provides standard emission factors for a wide variety of commercial and industrial activities and sources. LDEQ does have a Small Business / Community Assistance program which can help to address these requirements (without enforcement action in most cases).[iii]

It should also be noted that there are other specific exemptions from air permitting that may be applicable to individual circumstances. Also, if a source does not qualify for an exemption, there are a wide variety of potentially applicable types of air permits, including minor source permits, standard oil and gas minor permits, portable source permits, temporary source permits, general permits, regulatory permits, and major source permits. If an owner or operator of a source of air emissions determines that it does not qualify for an exemption, it should seek to obtain the appropriate air permit as soon as possible to minimize the potential for and/or magnitude of enforcement action.

****************

[i] Available at: http://www.deq.louisiana.gov/portal/Portals/0/planning/regs/title33/33v03-201703%20Air.pdf.

[ii] Available at: https://www.epa.gov/air-emissions-factors-and-quantification/ap-42-compilation-air-emission-factors.

[iii] See: http://www.deq.louisiana.gov/portal/tabid/85/Default.aspx.

 

chem

By R. Lee Vail, P.E., Ph.D.

On February 28, 2017, the EPA received a petition from the “RMP Coalition” for reconsideration and a request for a stay from the amendments to the RMP rule. The RMP Coalition consists of several affected industry trade groups, manufacturing groups, and the Chamber of Commerce of the United States of America. The petition asserts that:

  • the Local Emergency Planning Committee (“LEPC”) disclosure requirements are open ended, will result in a significant security risk, and that EPA failed to give notice that it may alter the final rule being open-ended;
  • the EPA changed the third-party audit criteria to include an arbitrary trigger that is subject to the whims and imagination of an agency, and EPA did not properly notice or address this change;
  • the EPA did not include information on its cost-benefit findings as required by Michigan v. EPA, 135 S.Ct. 2699 (2015);
  • the scope of the three year audit was expanded to include all covered process without providing notice of the change or the rational;
  • the EPA failed to explain claimed statutory authority to expand the rule;
  • numerous supporting documents were not available during the comment period; and
  • the EPA should reconsider the amendment “in light of the revelations that the West, Texas, incident was an intentional act.”

On March 13, 2017, Scott Pruitt, Administrator of the EPA, convened a proceeding for reconsideration of the RMP rule amendments and signed a letter that administratively delayed the effective date of the rule for 90 days.