Environmental Litigation and Regulation

By M. Dwayne Johnson

The D.C. Circuit’s July 7, 2017 decision on EPA’s 2015 definition of solid waste rule (DSW Rule)[1] may change the regulation of hazardous waste in Louisiana. First, some background.

In 2008, EPA promulgated a definition of solid waste rule that was intended to foster waste recycling (2008 Rule).[2] Therein, among other things, EPA provided two exclusions from the definition of solid waste:[3] (a) the generator control exclusion (GCE) for material reclaimed under the control of the generator, and (b) the transfer based exclusion (TBE) where the material is reclaimed by a third party reclaimer that has a RCRA permit or, if the reclaimer has no permit, the generator has made reasonable efforts to ensure that the reclaimer legitimately reclaims the material. The 2008 Rule was not mandatory.[4]

In 2015, EPA promulgated the DSW Rule that likewise was intended to foster waste recycling.[5] Therein, among other thing, EPA revised the GCE and replaced the TBE with the verified recycler exclusion (VRE). Under the VRE, material is excluded from the definition of solid waste if it is reclaimed by a third party reclaimer that has a RCRA permit or that has been approved (via variance) by EPA or a qualified state. EPA also provided 4 factors (Legitimacy Factors) to determine whether material is legitimately recycled and thus not discarded material (ergo solid waste): (1) the material must provide a useful contribution to the recycling process or to a product or intermediate of the recycling process; (2) the recycling process must produce a valuable product or intermediate; (3) the generator and the recycler must manage the material as a valuable commodity when it is under their control; and (4) the product of the recycling process must be comparable to a legitimate product or intermediate[6]. The DSW Rule contained both mandatory provisions (legitimate recycling) and non-mandatory provisions (the GCE and VRE).

Last month, LDEQ revised its hazardous waste regulations to adopt the DSW Rule and those portions of the 2008 Rule that remained in place.[7]

But in its decision, the DC Circuit:  (1) vacated the VRE, except for its emergency preparedness and response requirements and its expanded containment requirements; (2) reinstated the TBE (including its bar on spent catalysts); and (3) generally vacated Legitimacy Factor 4.[8]

The DC Circuit may reconsider its decision, and the Supreme Court may revise the decision on appeal. In the meantime, the decision’s effect is unclear and the Louisiana regulated community needs guidance from EPA and LDEQ.

Until then, it appears the DC Circuit’s decision will have the following effect in Louisiana:

  • The VRE is no longer available.
  • The TBE is not currently available (because it was never adopted in Louisiana).
  • If LDEQ amends its rules to adopt the TBE, spent catalysts will be barred, the generator will need to comply with the VRE emergency preparedness and response provisions, and the VRE expanded containment requirements will apply.
  • Because LDEQ’s hazardous program can be more stringent than EPA’s, until LDEQ amends its rules or otherwise stays enforcement, Legitimacy Factor 4 may remain in place for all recycling (not just under the GCE).

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[1] American Petroleum Institute v. EPA, No 09-1038 (D.C. Circuit 2017).

[2] 73 Fed. Reg. 64668 (October 30, 2008).

[3] Fundamentally, for a material to be a hazardous waste, it must first be a solid waste. Or stated differently, if a material is not a solid waste, it cannot be a hazardous waste. Thus, material excluded from the definition of solid waste will not be regulated as a hazardous waste.

[4] That is, qualified states — like Louisiana — that have been authorized by EPA to administer and enforce the state hazardous waste program in lieu of the federal program were not required by EPA to adopt the 2008 Rule in order to maintain their qualification (or delegation).

[5] 80 Fed. Reg. 1694 (January 13, 2015).

[6] Under the DSW Rule, for recycling to be legitimate, all four Legitimacy Factors have to be met.

[7] 43 La. Reg. 1151 (June 20, 2017).

[8] Because the GCE specifically requires compliance with the rule containing all four Legitimacy Factors (40 CFR 260.43(a)), Legitimacy Factor 4 apparently still will have to be met to establish legitimate recycling under the GCE.

 

EPA

By Lee Vail

On June, 9, 2017, Scott Pruitt signed a final rule  delaying the effective date of the RMP rule until February 19, 2019. The Environmental Protection Agency” (“EPA”) stated that it had received 54,117 public comments, 54,000 of which were part of a mass mail campaign, leaving 108 submissions with unique content. A final rule is expected to be published in the Federal Resister in the near future.

A significant portion of the final rule is dedicated to authority issues: can EPA stay effectiveness during reconsideration? In response to comments, the EPA affirmed that it had authority to delay implementation as required. Specifically the EPA stated:

  • EPA notes that CAA section 112(r)(7)(A) does not contain any language limiting “as expeditiously as practicable” to an outside date (e.g., “in no case later than date X”).
  • A natural reading of the language is that the act of convening reconsideration does not, by itself, stay a rule, but the Administrator, at his discretion, may issue a stay if he has convened a process.
  • The statutory framework for a discretionary rule under CAA section 112(r)(7) differs greatly from the “highly circumscribed schedule” analyzed by the NRDC [Natural Resources Defense Council v. Reilly, 976 F.2d 36 (D.C. Cir. 1992] court. Absent an otherwise controlling provision of the CAA, CAA section 307(d) allows EPA to set reasonable effective date.

Whereas the EPA did not address substantive comments (as reconsideration is another rule making action), it did agree that sufficient issues were raised to justify reconsideration. Specifically the timing of the Bureau of Alcohol, Tabaco, Firearms and Explosives’ (“BATF”) West Fertilizer finding justifies reconsideration:

  • If the cause of the West Fertilizer explosion had been know sooner, the Agency may have possibly given greater consideration to potential security risks posed by the proposed rule amendments. All three of the petitions for reconsideration and many of the commenters discussed potential security concerns with the rule’s information disclosure requirements to LEPC and the public.

In conclusion, the effective date of the RMP revisions, published on January 13, 2017, has been delayed to February 19, 2019.

 

 

 

 

 

epa

By Lee Vail

The EPA updated its web page titled “Frequent Questions on the Final Amendments to the Risk Management Program (RMP) Rule” on Monday, June 12, 2017.  According to the revised Q&A (page 9):

  1. When does the rule become effective?
  2. The effective date of this action has been delayed to February 19, 2019.

It has generally been reported that the EPA sent the rule to the White House Office of Management & Budget (“OMB”) for a pre-publication review of the final rule. Has the EPA tipped its hand?

california

By Lee Vail

New projects require air permits and projects at major stationary sources that will emit (or increase) a significant amount of a regulated NSR pollutant, must conduct a control technology review.  In order to receive a permit, the applicant must determine the level of control considered Best Available Control Technology (“BACT”) and the permit issuing authority must agree.  This has been the rule for a long time and nothing is new.

As it relates to greenhouse gas (“GHG”) emissions, facilities that have a significant increase of a non-GHG and a significant increase in GHG must conduct a GHG BACT review.  Typically these reviews conclude that add-on controls, such as Carbon Capture and Sequestration (“CCS”), are infeasible. As a result, BACT may be a combination of good-engineering/good-combustion practices, low carbon fuels, or an emission limit.  The lack of feasible add-on controls is typically based on the high associated cost, the lack of controlling legal mechanisms, and the dearth of actual experience.  California has started a process that may start to address the last two issues.  As for the excessive cost of CCS, that will likely remain.  However experience usually results in some reduction of cost.

A little over a year ago, The California Air Resource Board (“CARB”) initiated a series of public workshops[1] with the goal of better understanding of “the ability of CCS to contribute to climate goals, the limitations or advantages of the technology, and the innovation and incentives necessary for adoption.”[2] Six additional “Technical Meetings” have occurred since that time and on May 8, 2017, CARB conducted a public workshop where CARB staff presented “an initial concept of a Quantification Methodology (QM) and Permanence Protocol for CCS.”[3] CARB is signaling the intent to establish QM and permanence requirements into California’s Low Carbon Fuel Standard (LCFS) in the near term with possible inclusion into the California Cap-and-Trade (“C&T”) regulation sometime in the future.

Following the May 8, 2017 workshop, CARB has received multiple substantive comment letters.  Many of these comments were from industry groups that provided significant positive technical comments.  That said general concerns with the current proposal were expressed:

  • Inability of moving carbon dioxide from one well to another (i.e., reuse carbon dioxide used for enhanced recovery).
  • Post-closure should not prohibit future activity in an oil reservoir if it can be shown that carbon dioxide is not released.
  • Well construction (cemented to the surface) will not allow use of existing wells and may be counterproductive with leak monitoring and mitigation.
  • Inclusion of QM for C&T should occur expeditiously.

California has unique laws concerning GHG control that create incentives to investigate CCS as an add-on technology.  CARB’s development of protocols (and eventually regulations) is clearly intended to spur activity along CCS activity.  Whereas, non-California projects are not constrained with C&T requirements, prolific expansion of CCS in California may make the infeasible argument more difficult. Close attention should be paid to this process.

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[1] CARB, Carbon Capture and Sequestration Meetings, found at https://www.arb.ca.gov/cc/ccs/meetings/meetings.htm.

[2] Workshop Notice and Draft Agenda, from Elizabeth Scheehle, Oil and Gas and Greenhouse Gas Mitigation Branch, CARB (January 21, 2016); found at https://www.arb.ca.gov/cc/ccs/meetings/Workshop_Notice_1-21-16.pdf.

[3] Workshop Notice and Draft Agenda, from Elizabeth Scheehle, Oil and Gas and Greenhouse Gas Mitigation Branch, CARB (April 18, 2017); found at https://www.arb.ca.gov/cc/ccs/meetings/Workshop_Notice_5-8-17.pdf

refinery_sunset_10212716

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

On January 13, 2017, the Environmental Protection Agency (“EPA”) published a final rule revising portions of the Risk Management Program (“RMP”) rule. On April 3, 2017, the EPA proposed to delay the effective date of the changes until February 19, 2019 to allow for a reconsideration of these changes. 82 Fed. Reg. 16146 (Apr 3, 2017). Comments were due by May 19, 2017 and the comment period is now closed. Four hundred and five (405) public comments are available on Regulations.Gov and range from a few sentences in support of a position to detailed comments. Commenters for denial often state that sufficient time and consideration was allotted in the rule making process and comments supporting the delay often focus on a flawed rule-making process that created the changes.

The current delay is set to expire on June 19, 2017 as the original stay is effective for up to three months.[1] Commenters for the delay state that time is needed to correct the apparent flaws. Comments against the delay include citation to an “expressed mandate that regulations promulgated pursuant to §112(r) have an effective date assuming compliance with RMP requirements as expeditiously as practical.” See United Steelworkers Union comments. In proposing extra time to conduct the reconsideration, the EPA suggested that “three months to be insufficient to complete the necessary steps in the reconsideration process.” 82 Fed. Reg. at 16148. In the event EPA chooses to delay all or portions of the revised rule, a central issue will be the amount of time required.

Separate and aside, the Teamsters Union has teamed up with an environmental group and filed a lawsuit alleging that the public has been denied access to emergency response plans as required by the Emergency Planning and Community Right to Know Act (“EPCRA”). In the lawsuit, New Jersey Work Environment Council (NJWEC) et al. v. State Emergency Response Commission (SERC), plaintiffs are seeking access to Emergency Response Plans (“ERP”) developed by the Local Emergency Planning Community (“LEPC”). Whereas the suit is not demanding facility ERPs, the likely source of any information at the LEPC would be facilities. The stayed rule includes provisions that the facility confirm whether the stationary source is included in the community ERP pursuant to 42 U.S.C. 11003 (see stayed rule at 40 CFR 68.180(b)(i)) and increased availability of information to the public (see stayed rule at 40 CFR 68.210). Although the information requested in the lawsuit is not identical to facility information in the stayed rule, it certainly overlaps.

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[1] Such reconsideration shall not postpone the effectiveness of the rule. The effectiveness of the rule may be stayed during such reconsideration, however, by the Administrator or the court for a period not to exceed three months. Clean Air Act §307(d)(7)(B).

This is a horizontal, color, royalty free stock photograph shot with a Nikon D800 DSLR camera. The sky at dusk reflects pastel colors on the tranquil water's surface. Lilly pads float on this wetland landscape. Trees fill the background.

By Lauren J. Rucinski

The US Ninth Circuit Court of Appeals has an opportunity to rule on controversial Clean Water Act wetlands jurisdictional requirements through the appeal of a Montana man’s conviction for polluting a navigable waterway. US v. Joseph Robertson, No. 16-30178 (C.A. 9). The timing of the appeal could affect the Trump administration’s efforts to take a second look at the Obama-era “Waters of the United States” (“WOTUS”) rule.

Joseph Robertson was convicted by a jury in the U.S. District Court for the District of Montana in April of 2016 for unauthorized discharge of pollutants into waters of the US and malicious mischief for injury or depredation of US property. The charges arose from Robertson’s excavation and construction of 9 stock ponds after being told by the government that he could not do so. The activities caused the discharge of dredged and fill materials into a tributary of the neighboring navigable river and also caused damage to nearby wetlands. Robertson was sentenced to 18 months prison and ordered to pay $129,933 in restitution for ponds dug on Beaverhead-Deerlodge National Forest land and on private property near his mining claim. Robertson now argues that the District Court did not have jurisdiction to hear his case because the government failed to articulate a lawful standard for what qualifies as “waters of the United States.” United States v. Robertson, No. CR 15-07-H-DWM, 2015 WL 7720480 (D. Mont. Nov. 30, 2015).

The Clean Water Act prohibits the discharge of any pollutant without a permit into “navigable waters,” which it defines, in turn, as “the waters of the United States.” 33 U.S.C. §§ 1311(a), 1362(7), (12). The term “waters of the US” has always included certain wetlands within federal jurisdiction, but the scope of that jurisdiction has been controversial.  The U.S.  Army Corps of Engineers administers the program which issues permits for dredge and fill activities affecting waters of the US. However, for a certain waterbody to be subject to permitting requirements, it must be a “water of the United States.”

Over the years, the primary issue concerning which wetlands are subject to regulation was the degree of their connectedness with a “real” navigable water. The current seminal cased interpreting “waters of the United States” is a split 4-1-4 opinion from the US Supreme Court in Rapanos v. US, 547 U.S. 715 (2006). Justice Scalia wrote the plurality opinion which held that the term “waters of the United States” requires wetlands to maintain a “continuous surface connection” to navigable waters. Justice Kennedy wrote a separate concurring opinion with a relatively wider view of jurisdiction under the Clean Water Act, requiring only that the wetland maintain a “significant nexus” to navigable waters. Confusion has ensued, with courts applying the Clean Water Act to any water that satisfied either the Kennedy or Scalia tests. However, the Seventh Circuit, and relevant to the Robertson case, the Ninth Circuit have held that the Kennedy test alone is controlling. N. Cal. River Watch v. City of Healdsburg, 496 F.3d 993, 999-1000 (9th Cir. 2007).

The Corps and EPA sought to resolve the ambiguity created by the Rapanos decision by issuing guidance in 2007, then revising it in 2008.  However, the regulated community found the guidance equally ambiguous and many requested promulgation of rules rather than guidance. The Obama administration promulgated a regulation, referred to as the WOTUS rule, in 2015.[1] The rule used Kennedy’s test only, but that regulation was challenged in a number of federal district courts and courts of appeal.  The litigation has been consolidated nationwide in the US Court of Appeals for the Sixth Circuit, where the rule has been stayed pending review.[2]

In the meantime, the Corps permitting and enforcement programs continue under the prior rules, with only Rapanos as guidance. The jury in the Robertson case was instructed to use the Kennedy “significant nexus” test in determining that the tributary Robertson polluted was in fact regulated by the CWA. Two months after Robertson’s conviction, the Ninth Circuit decided United States v. Davis, 825 F.3d 014 (9th Cir. 2016). In Davis, the Ninth Circuit held that a split Supreme Court decision should only bind the federal courts of appeal when a majority of the Justices agree upon a single underlying rationale and one opinion can reasonably be described as a logical subset of the other. Id.at 1021-22. Robertson argues on appeal that the ruling in Davis effectively overturns prior Ninth Circuit precedent applying the Kennedy test as the sole test, teeing up the question of which Rapanos test should be applied, if any, for the Ninth Circuit.

The Ninth Circuit will hear the Robertston case amid a slew of other legal battles over the jurisdiction of the Clean Water Act. For example, a case pending in the Eastern District of California for over a year pivots around the same arguments on the breadth of the Clean Water Act’s jurisdiction. See Duarte Nursery Inc. v. Army Corps of Engineers, et al., 17 F. Supp. 3d 1013 (E.D.Cal. 2014). The plaintiffs in that case have filed a motion to stay the case until the Robertston decision.

Further, a Supreme Court case, National Association of Manufacturers v. Department of Defense, challenges whether law suits over the WOTUS rule should be heard in the federal district courts or federal appellate courts (currently pending in 6th Circuit). If the Supreme Court decides that the district courts should hear these types of cases, it could revive a waterfall of stayed or dismissed district court cases over the WOTUS rule. The Supreme Court decided to take up the case in January, but the Trump administration subsequently asked the Court to stay the case following a February 28, 2017 executive order[3] compelling U.S. EPA and the Army Corps of Engineers to take another look at the WOTUS rule. On the same day, EPA and the Corps announced that their intent is to repeal the WOTUS rule and to propose a new rule.[4] A proposed revision to the rule has been sent to the Office of Management and Budget, but has not yet been released to the Federal Register for proposal.[5] It is widely anticipated that the proposed rule will adopt the Scalia test.

The scope of the Clean Water Act jurisdiction is particularly significant to landowners and industry groups in Louisiana. Obtaining a permit is costly but the penalties for discharging into waters of the United States without one can be rather substantial (criminal conviction and/or civil penalties), and can include an injunction stopping the project. The Trump administration has indicated that it supports the Scalia interpretation which would, to a certain degree, limit the scope the U.S. EPA and Army Corp of Engineers jurisdiction over certain “isolated” waters and wetlands. However, if the Ninth Circuit endorses the Kennedy rule in the Robertson case, it may create more legal hurdles for the Trump administration in overturning the WOTUS rule through rulemaking action.

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[1] 80 Fed. Reg. 32054, June 29, 2015.

[2] In re: United States Department of Defense and United States Environmental Protection Agency Final Rule: Clean Water Rule: Definition of “Waters of the United States”, 803 F.3d 804 (6th Cir. 2015).

[3] See: https://www.whitehouse.gov/the-press-office/2017/02/28/presidential-executive-order-restoring-rule-law-federalism-and-economic.

[4] 82 Fed. Reg. 12532, March 6, 2017.

[5] For updates on the current WOTUS rulemaking, see: https://www.epa.gov/wotus-rule.

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.