liquor-bottles

By Jill Gautreaux

The City of New Orleans (“the City”) has amended and re-enacted a gallonage tax on alcoholic beverages of low and high alcoholic content. A “gallonage tax” is a tax on alcoholic beverages based upon the amount, calculated in gallons, of alcoholic beverages sold. The current ordinance became effective on January 1, 2017, but industry members have sought to enjoin the implementation of this “new” tax. The ordinance closely follows the wording of the State gallonage tax statutes, which causes the tax to apply to wholesalers or Louisiana manufacturers because they are the first parties to come into possession of the alcoholic beverages in the State of Louisiana. The City ordinance does not have the effect that it apparently intended, and is worded as follows:

Section 10-511 – Who is liable for tax.

The taxes levied in sections 10-501 and 10-502 of this division shall be collected, as far as practicable, from the dealer who first handles the alcoholic beverages in the city. If for any reason the dealer who first handled the taxable alcoholic beverages has escaped payment of the taxes, those taxes shall be collected from any dealer in whose hands the taxable beverages are found.

On February 9, 2017, the City Council introduced an ordinance to amend Section 10-511, which qualified the word “dealer” in the first sentence and the first phrase of the second sentence with “wholesale”. Nevertheless, according to the current wording of the ordinance, if the wholesale dealer has “escaped” the tax, the retailer will be responsible for paying the tax to the City.

There is a strong likelihood that New Orleans alcoholic beverage retailers will end up having to pay some of this tax if the ordinance is enacted and enforced as currently written. Several large wholesale companies, including Southern Glazers, Southern Eagle, and Republic, do not have any physical presence within the City of New Orleans, and therefore should not be subject to the tax.

A few trade organizations have challenged the enforceability of the ordinance in Orleans Parish Civil District Court. The plaintiffs were successful in obtaining a temporary restraining order, but were denied a preliminary injunction. The temporary restraining order has lapsed, but, as of this date, the City has indicated that it will not collect the tax until the litigation has concluded. One City official has suggested that if the City prevails, that the tax due will be retroactive to January 1, 2017.

 

la

By William Kolarik

The New Jersey Tax Court’s opinion in Elan Pharmaceuticals, Inc. v. Director, Division of Taxation, Dkt. No. 010589-2010 (Tax Ct. of N.J. February 6, 2017) highlights the potential constitutional concerns related to the application of Louisiana’s recently enacted throw-out rule.

On June 28, 2016, Louisiana Governor Edwards signed H.B. 20 (Act 8) (effective June 28, 2016) into law. In addition to changing the apportionment rules for certain industries and enacting market-based sourcing for sales of services, Act 8 also contains a throw-out rule. Specifically, Act 8 amends the Louisiana apportionment rules to provide that “[i]f the taxpayer is not taxable in a state to which a sale is assigned or if the state of assignment cannot be determined or reasonably approximated pursuant to [the Louisiana apportionment rules contained in La. R.S. 47:287.95 and its related regulations], the sale shall be excluded from the numerator and the denominator of the sales factor.”[1] The throw-out rule applies to all taxable periods beginning on or after January 1, 2016.

A throw-out rule is an, oftentimes controversial, alternative to a “throw-back” rule. A throw-back rule is a rule that sources a taxpayer’s sales that are not taxable in the state of destination to the state of origin. From a policy perspective, the proponents of throw-back rules assert that it is appropriate to redistribute non-taxed sales to the state of origin because the state of origin is ostensibly connected to the non-taxed sales in some manner. In contrast, a throw-out rule redistributes income derived from sales made to a state where a taxpayer is not subject to tax to another state where a taxpayer is subject to tax by removing the non-taxable sales from both the numerator and the denominator of the taxpayer’s sales factor. The proponents of throw-out rules justify the rule by asserting that a taxpayer’s entire taxable income should be subject to state income tax. As Elan Pharmaceuticals and its related cases demonstrate, a throw-out rule becomes problematic and raises constitutional concerns when a tax administrator attempts to apply the rule in a manner that taxes income earned in another state that the other state’s legislature has jurisdiction to tax but chooses not to tax.

Elan Pharmaceuticals is the latest in a series of New Jersey cases in which the New Jersey Courts prohibited the New Jersey Division of Taxation (the “Division”) from applying New Jersey’s, now repealed, throw-out rule in an unconstitutional manner. Elan Pharmaceuticals (“Elan”), the taxpayer, was a Delaware company headquartered in California. Elan had property in 39 states, inventory in seven states, and payroll in 48 states. Elan only filed tax returns in six states because the other states in which it did business chose not to tax Elan’s in-state business activity. In at least 17 of the states in which Elan did not file a corporate income tax return, Elan was not subject to state income tax by virtue of Public Law 86-272 (“PL 86-272”), a federal law that prohibits a state from levying a state income tax if a taxpayer limits its in-state business activity to the solicitation of sales orders that are accepted and filled from inventory located outside the state.[2]

On audit, the Division applied New Jersey’s throw-out rule to reduce the denominator of Elan’s sales factor to include only amounts included in the sales factor numerators of the six states in which Elan reported a sales factor numerator. Elan challenged the Division’s application of the throw-out rule and asserted that the exclusion of receipts from its sales factor denominator was arbitrary and improper because it excluded receipts that were (1) allocable to other states where Elan was taxable pursuant to a throw-back rule; or (2) allocable to states where Elan stored its inventory, an activity which is a constitutional basis for asserting nexus; and (3) allocable to California, where Elan was headquartered. In contrast, the Division asserted that its application of the throw-out rule was proper because it excluded receipts from states that lacked jurisdiction to tax due to PL 86-272.

The court began its analysis by explaining that the Division’s arguments overlooked the substance of the New Jersey Supreme Court’s decision in Whirlpool Properties Inc. v. Director, Division of Taxation, 208 N.J. 141 (2011). In Whirlpool, the New Jersey Supreme Court held that New Jersey’s throw-out rule was constitutional as applied only “when the category of receipts that may be thrown out is limited to receipts that are not taxed by another state because the taxpayer does not have the requisite constitutional contacts with the state or because of congressional action such as P.L. 86–272.”[3] In contrast, the throw-out rule violated the dormant Commerce Clause when it excluded receipts that were not taxed by another state because the state chooses not to impose an income tax.[4] Citing Lorillard Licensing Co. v. Director, Division of Taxation, 28 N.J. Tax 590 (Tax 2014), in which the Superior Court of New Jersey held that the phrase “subject to tax” under Whirlpool applied in the context of economic nexus, the court emphasized that the test for determining whether the throw-out rule was constitutionally applied is whether a taxpayer has the requisite constitutional contacts with a state to be subject to the state’s taxing jurisdiction. According to the court, the possibility that PL 86-272 was implicated did not foreclose the limitations on the application of the throw-out rule because PL 86-272 does not bar an origin state from taxing the income generated from sales of goods to a destination state that cannot tax the income.

After explaining the constitutional limitations that applied to the application of New Jersey’s throw-out rule, the court explored the extent to which the states where Elan did not file tax returns had the ability to tax Elan’s operations. The court noted that an origin state had the authority to tax Elan’s sales from that state via a throw-back rule and that several states where Elan did business had throw-back rules. Therefore, the Division could not isolate application of the throw-out rule to New Jersey and deny that other origin states could tax Elan’s sales via a throw-back rule. Next, the court rejected the Division’s contention that Delaware’s choice not to impose an income tax required a conclusion that Elan’s sales of goods shipped from Delaware be removed from Elan’s sales factor denominator. In addition, the court also explained that an origin state or a destination state could impose a business-presence based corporate tax on Elan as long as the state had a basis to assert nexus over Elan, such as Elan’s storage of inventory, ownership of property, or payroll in the state. Because other states could constitutionally tax Elan’s sales, the court reversed the Division’s determination that only receipts reported to six states could be included in Elan’s sales factor denominator.

Louisiana Implications

The Louisiana Department of Revenue (the “Department”) has not issued guidance regarding how it intends to apply Louisiana’s throw-out rule. Nevertheless, it is important to understand that the limitations on the application of a throw-out rule described in the New Jersey cases are constitutional limitations that apply to the application of any throw-out rule by any state, including Louisiana. A taxpayer preparing its 2016 Louisiana corporation income tax return should carefully consider the extent to which the Louisiana throw-out rule applies to its out-of-state business activity in states where it does not file a corporate income tax return. When considering how the Louisiana throw-out rule applies, a taxpayer should give extra scrutiny to any state that has the ability to levy a tax on its sales but that chooses not to do so, e.g., an origin state in which a taxpayer stores inventory that does not adopt a throw-back rule. In addition, a Louisiana taxpayer affected by the throw-out rule should carefully scrutinize any guidance issued by the Department that purports to apply the throw-out rule to sales in destination states that have the ability to levy a tax on the taxpayer.

For additional information, please contact: Christopher J. Dicharry at (225) 382-3492, Jaye Calhoun at (504) 293-5936, or Willie Kolarik at (225) 382-3441.

[1] La. R.S. § 47:287.95(M).

[2] 15 U.S. Code § 381.

[3] Whirlpool Prop. Inc. v. Director, Div. of Taxation, 208 N.J. 141, 172 (2011)

[4] Id. at 172-173.

ml

By Tod J. Everage

Until the U.S. 5th Circuit gets an opportunity to directly address the continued viability of Scarborough v. Clemco Industries, 391 F.3d 660 (5th Cir. 2004) in the wake of Atlantic Sounding v. Townsend, 557 U.S. 404 (2009), we are likely to see a lack of harmony among the district court judges considering this issue. Scarborough specifically protects third parties (see oil and gas companies) against punitive damage exposure (see uninsured) from injured seamen employed by their contractors (see vessel companies). We have been following the EDLA commentary on Scarborough as its erosion would significantly raise the potential liability of those companies who contract for the use of vessels. See previous posts here and here for more background on the Scarborough fight in the Eastern District of Louisiana. Recently, one of the two EDLA Judges holding the view that Scarborough was no longer good law reversed his course, resulting now in a 7-1 score in favor of Scarborough, further reducing concern for an unpredictable judicial roulette on this issue.

In a nutshell, Scarborough was the legal consequence of a long line of jurisprudence in the 5th Circuit holding that punitive damages were not available under the Jones Act or General Maritime Law (“GML”) that began with Miles v. Apex Marine, 498 U.S. 19 (1990). Where Miles protected the Jones Act employers from punitive damages, Scarborough protected all other third party defendants, such as oil and gas companies who had hired those Jones Act employers. In 2009, Townsend reined in the expanding prohibitions on punitive damages by finding that they could be awarded under GML for the employer’s willful and wanton failure to pay maintenance and cure. Townsend very directly and explicitly abrogated Guevera v. Maritime Overseas Corp., 59 F.3d 1496 (5th Cir. 1995) which had previously held just the opposite. That abrogation is relevant here because the Scarborough court cited Guevera favorably and extensively in its analysis.

Though Townsend definitely overruled Guevera, it also re-affirmed Miles, which remains a pillar of maritime jurisprudence in this area. Plaintiff attorneys view Townsend as a means to reverse the expansion of Miles and have renewed their attack on those judge-made roadblocks to the availability of punitive damages. With oil and gas companies being viewed as the “deep pockets” in lawsuits, Scarborough’s protection of those companies has become a popular focus.

After Townsend, several judges re-affirmed Scarborough with little more than lip service, as it seemed clear that Townsend was limited to maintenance and cure issues and the district courts could not “assume the Fifth Circuit has changed its position on personal injury claims falling outside the scope of Townsend.” See In re: Deepwater Horizon, 2011 WL 4575696 (E.D. La. 9/30/11) (Barbier, J.); see also O’Quain v. Shell Offshore, Inc., 2013 WL 149467 (E.D. La. 1/14/13) (Berrigan, J.); In re: International Marine, LLC, 2013 WL 3293677 (E.D. La. 6/28/13) (Lemmon, J.); Bloodsaw v. Diamond Offshore Mgmt. Co., 2013 WL 5339207 (E.D. La. 8/19/13) (Vance, J.); Ainsworth v. Caillou Island Towing Co., 2013 WL 3216068 (E.D. La. 10/21/13) (Brown, J.). Despite the perceived clarity, Judge Barbier foresaw the potential dispute that could arise on this issue given the underlying reasoning in Townsend. (“Though this conclusion is not without doubt given the Supreme Court’s recent decision in [Townsend]…”). In Todd v. Canal Barge Co., 2013 WL 5410409 (E.D. La. 9/25/13), Judge Fallon provided the first true analysis of the continued validity of Miles and its progeny after Townsend. Therein, Judge Fallon acknowledged the limitations of Townsend and the re-affirmation of Miles, and dismissed the plaintiff’s claims for punitive damages for negligence and unseaworthiness. This opinion makes his later decision in Collins all-the-more anomalous.

In 2014, the U.S. 5th Circuit decided McBride v. Estis Well Service, LLC, 768 F.3d 382 (5th Cir. 2014), wherein the en banc panel also held that Townsend was narrowly limited to maintenance and cure claims. McBride acknowledged the continued vitality of Miles to preclude all other forms of punitive damages claims under GML or the Jones Act, though it did not directly mention Scarborough. Judge Fallon then got another opportunity to address Scarborough in light of both Townsend and McBride. See Collins v. ABC Marine Towing, LLC, 2015 WL 5254710 (E.D. La. 9/9/2015). Therein, Judge Fallon distinguished Miles and McBride and was persuaded by Townsend’s abrogation of Guevera, which he felt served as the foundation for Scarborough. Judge Fallon held that Scarborough was “effectively overruled” by Townsend, finding that it was “inconsistent with current Supreme Court precedent.” He did not cite to his prior ruling in Todd just a year prior. This decision served as the first major blow to formerly-protected third party, non-Jones Act employers in the EDLA.

Shortly thereafter, Judge Morgan joined the majority, issuing two opinions upholding Scarborough. See Howard Offshore Liftboats, LLC, 2015 WL 7428581 (E.D. La. 11/20/15); Lee v. Offshore Logistical and Transports, LLC, 2015 WL 7459734 (E.D. La. 11/24/15). A few months later though, Judge Zainey issued an opinion against Scarborough, relying heavily on Judge Fallon’s reasoning in Collins. See Hume v. Consolidated Grain & Barge, Inc., 2016 WL 1089349 (E.D. La. 3/21/16). Judge Morgan again re-affirmed her confidence in Scarborough in Lewis v. Noble Drilling Services, 2016 WL 3902597 (E.D. La. 7/19/2016).

Heading into the 2017, only Judges Fallon and Zainey had rejected the continued viability of Scarborough and its punitive damages prohibition, while at least six of their colleagues held differently. Then, unexpectedly, Judge Fallon changed his mind and joined the majority. See Wade v. Clemco Indus., No. 16-00502 (E.D. La. 2/1/2017). Wade presented Judge Fallon with yet another opportunity to directly address Scarborough; but, this time his analysis and holding were fundamentally different. Wherein Collins, he focused on Scarborough’s reliance on Guevera, in Wade, he instead focused on Miles. Judge Fallon was also persuaded this time by McBride: “It has become clear since the en banc opinion in McBride that in wrongful death cases brought under general maritime law, a survivor’s recovery from employers and non-employers is limited to pecuniary losses.” Quite differently than holding that Scarborough was “effectively overruled,” this time he noted that McBride gave it “clarity and vitality.” As a consequence, Judge Fallon dismissed the plaintiff’s punitive damages claims against the third parties who were not the plaintiff’s Jones Act employer. This is good news for third party defendants finding themselves on the wrong end of a Jones Act lawsuit in the EDLA, as there is now only one judge’s opinion in favor of (and seven against) allowing punitive damage claims to proceed against them. Since these decisions are interlocutory in nature, they do not get appealed by right, and all prior cases have settled before the 5th Circuit could comment. Nevertheless, we will keep an eye out for any further developments, hoping that the remaining judges who get an opportunity to consider this issue fall in line with the legally-sound majority.

LouisianaPaddleboatStamp

By Mallory McKnight Fuller

When two parties agree to arbitrate, the obvious hope of the prevailing party is that the losing party will voluntarily comply with the arbitrator’s decision. This article is directed towards the situation in which the losing party refuses to so comply, and the prevailing party must petition the appropriate court system to “enforce” the arbitrator’s award.

Until confirmation, modification, or correction by a court of competent jurisdiction, an arbitration award is unenforceable under the law. The process for enforcing an arbitration award in Louisiana depends on whether the Federal Arbitration Act (“FAA”) or the Louisiana Binding Arbitration Law (“BAL”) applies.[1]

CONFIRMING ARBITRATION AWARDS

Whichever law applies, a party wishing to confirm an arbitration award must file a proceeding requesting confirmation of the award in a court of competent jurisdiction within one year of the award’s issuance.[2] While this one-year period is mandatory under the BAL, the federal courts of appeals are split on whether the same period is mandatory under the FAA. However, the U.S. Court of Appeals for the Fifth Circuit, which is the appellate court of federal jurisdiction over Louisiana, has implied that the one year limitations period is mandatory.[3]

In federal court, the FAA requires a party to begin the process of confirming an arbitration award by filing (and serving) either a petition or motion to confirm in the appropriate federal district court.[4]  Unlike the BAL, however, the FAA does not create independent subject matter jurisdiction, so the applicant must show that the federal district court has original subject matter jurisdiction over the dispute.[5]  The federal court has personal jurisdiction over the necessary parties once a party serves notice of the confirmation application on all parties.[6]

In both federal and state court, the confirmation of an arbitration award is a summary proceeding.[7]  The appropriate court will confirm the arbitration award (by granting the applicant’s motion) if no party challenges the enforcement of the award, and the court finds no grounds for vacating, modifying, or correcting the award.[8]  The court enters judgment on the award, which has the same force and effect as an ordinary judgment.[9]

VACATING, MODIFYING, OR CORRECTING AN ARBITRATION AWARD

Both the FAA and the BAL permit a party to challenge or request vacation, modification, or correction of an arbitration award.[10]  A notice of a motion to vacate, modify, or correct an arbitration award must be served upon the adverse party within three months after the award is issued.[11]  The grounds upon which an arbitration award can be changed or overturned are narrow and well-defined. Practically, this makes it very rare and difficult to alter an arbitration award.

Because arbitration is favored, both federal and state courts presume that an arbitration award is valid. Under the FAA and BAL, a court has authority to vacate an award only upon the following grounds:

  1. where the award was procured by corruption, fraud, or undue means;
  2. where there was evident partiality or corruption in the arbitrators, or either of them;
  3. where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced; or
  4. where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.[12]

The FAA and BAL also limit a court’s authority to modify or correct an arbitration award. An award can be modified or corrected only:

  1. Where there was an evident material miscalculation of figures or an evident material mistake in the description of any person, thing, or property referred to in the award.
  2. Where the arbitrators have awarded upon a matter not submitted to them, unless it is a matter not affecting the merits of the decision upon the matter submitted.
  3. Where the award is imperfect in matter of form not affecting the merits of the controversy.[13]

If one of these two grounds apply, the courts will modify or correct arbitration awards “so as to effect the intent thereof and promote justice between the parties.”[14]

AWARDS AND ORDERS SUBJECT TO APPEAL

Both the FAA and the BAL permit the appeal of certain arbitration orders, including any order confirming, modifying, correcting, or vacating an award.[15]  Under the BAL, a party appeals from an arbitration order or judgment entered on an award in the same manner as a party appeals from an ordinary order or judgment.[16]  The federal courts and Louisiana appellate courts review a trial court’s confirmation of an arbitration award de novo.[17]

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[1] Chapter 1 of the FAA governs domestic arbitrations and applies to maritime disputes and contracts “involving commerce.” 9 U.S.C. §§ 1-16. The BAL governs arbitration in Louisiana, unless preempted by the FAA. La. R.S. §§ 9:4201-9:4271.

[2] 9 U.S.C. § 9; La. R.S. 9:4209.

[3] Bernstein Seawell & Kove v. Bosarge, 813 F.2d 726, 731 (5th Cir. 1987) (noting the complaint to enforce the arbitration award was filed within one year “As required by 9 U.S.C. § 9”).

[4] If the arbitration agreement does not specify the particular court, the party applying for confirmation of the award may file in any court in the district where the award was issued. 9 U.S.C. § 9.

[5] Vaden v. Discover Bank, 556 U.S. 49 (2009).

[6] 9 U.S.C. § 9.

[7] Id.; La. R.S. § 9:4209; see also Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 22-23 (1983).

[8] 9 U.S.C. §§ 10-11; La. R.S. §§ 9:4205 and 9:4209.

[9] 9 U.S.C. § 13; La. R.S. § 9:4214.

[10] 9 U.S.C. § 11; La. R.S. § 9:4211.

[11] 9 U.S.C. § 12; La. R.S. § 9:4213.

[12] 9 U.S.C. § 10; La. R.S. § 9:4210.

[13] 9 U.S.C. § 11; La. R.S. § 9:4211.

[14] Id.; Gilbert v. Robert Angel Builder, Inc., 45,184 (La. App. 2 Cir. 4/14/10); 24 So. 3d 1109, 1113.

[15] La. R.S. § 9:4215; 9 U.S.C. § 16.

[16] La. R.S. § 9:4215.

[17] NCO Portfolio Mgmt., Inc. v. Walker, 08-1011 (La. App. 3 Cir. 2/4/09); 3 So. 3d 628, 632; Sarofim v. Trust Company of the West, 440 F.3d 213 (5th Cir. 2006)

Accessibility computer icon

By Price Barker, Brian Carnie, and Michael Lowe

Disability access lawsuits have become a cottage industry and they have found their way into Louisiana, Texas and Arkansas.  Most are brought by the serial litigants working with same law firm.  These plaintiffs visit a business for the primary purpose of discovering an Americans with Disabilities Act (ADA) accessibility violation and then file a federal court lawsuit without giving the property owner, tenant or business advance notice of their complaint or an opportunity to fix the problems.

Now we are seeing a growing trend of “drive by” or “Google” disability access lawsuits.  The tag “drive-by” lawsuit came about due to accusations in many of these cases that either the plaintiff, or their lawyer, simply drove by the business, observed an alleged violation, and then filed suit.  The tag “Google lawsuit” arose from the belief of several business owners who have been sued that the ADA violations (such as the failure to have a lift seat at a hotel swimming pool) were discovered using Google earth.  In “drive-by” or “Google” lawsuits, the plaintiff almost always seeks attorneys’ fees, expert witness fees, and other litigation costs, as well as other concessions from the business they have sued.  Under federal law, business owners often have to pay both sets of attorneys’ fees, and if they do not settle, or make the corrections to their property demanded in the suit, it may end up costing them many thousands of dollars more, leading to accusations that these suits are simply money-making ventures for the plaintiff bar.

The ADA was passed by Congress in 1990.  Every private business in the United States open to the public must comply with the ADA.  This includes restaurants, bars, convenience stores, hospitals, hotels, shopping centers, and other retail locations.  The accessibility requirements of the ADA are very specific, and extensive.  There are thousands of requirements to be found in the 275-page ADA manual, which has specific requirements for things such as the slope and length of wheelchair ramps, the location and signage for handicap parking spots, and the height and location of door handles, sinks, toilets, and grab rails.

ADA access litigation is not limited to parking lots, sidewalks, restrooms and other alleged physical barriers in a “brick and mortar” establishment.  A growing number of lawsuits are being filed claiming that the business’ Web site does not provide adequate accessibility to the visually or hearing impaired.  Since 2010, the United States Department of Justice (DOJ) has delayed issuing specific regulatory guidance directly addressing the accessibility standards for commercial Web sites.  That does not mean that businesses do not have to try to comply with the general requirements of the ADA, nor does it prevent DOJ enforcement or suits by private plaintiffs.

Numerous ADA access lawsuits have been filed in federal court in Shreveport.  One of the recently filed claims is a class-action filed by a registered sex offender against a local municipality, claiming that the office where he is required to register as a sex offender is now violating the ADA by not providing him with a sign language interpreter.

So what should a business owner do to avoid this expensive headache?  A good starting point is to make your business an unattractive target.  Visit your location to see if there are any obvious ADA violations that would catch the attention of a “drive-by” plaintiff.  For example, look for un-ramped entrance steps, poorly maintained routes from handicap parking spaces to the entrance, handicap parking spaces with no access aisle, and observe the slope of your handicap parking spaces.  If you can see a slope, it is probably non-compliant.  And if you can see the slope, you can bet the plaintiff driving by will too.

 

chem

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

On March 14, 2016, Environmental Protection Agency (“EPA”) proposed changes to the Risk Management Plan Program (“RMP”) Rule . On January 13, 2017, the EPA published a new final rule. This is third in a planned series that will address five major changes: root cause analysis for near misses, third-party audits, inherently safer technology, emergency response, and availability of information. Last week the blog concerned audit privilege; this week I focus on conditions that trigger a third party audit and new audit finding implementation requirements.

Condition requiring a third party audit: Unchanged from the proposal, third-party audits are required anytime the facility has an incident that meets the five-year accident history criteria as described in §68.42(a). The five-year report criteria remained unchanged: significant on site impacts or known off-site impacts. Usually these events are associated with significant incidents.

In the proposal, the EPA added a second criterion based on an agency finding of non-compliance. This condition was replaced in the final rule with a different criterion: an agency finding of a condition that could lead to an accidental release.[1] The agency could also demand the owner repeat third-party audits that fail to meet competency or independence criteria. See 40 CFR 68.79(f)(2). The deficient condition finding could be based on factors including mechanical integrity deficiencies, smaller incidents that could have been bigger incidents, or smaller incidents that occurred more than once.

Conditions at a stationary source that could lead to an accidental release may include, but are not be limited to, significant deficiencies with process equipment containing regulated substances, such as unaddressed deterioration, rust, corrosion, inadequate support, and/or other lack of maintenance that could lead to an accidental release. The presence of small ‘‘pinhole’’ releases, that do not meet the criteria in § 68.42(a) for RMP- regulated accidental releases, could also constitute conditions that could lead to a larger accidental release of a regulated substance. The occurrence of several prior accidental releases that did not meet the reporting criteria in § 68.42(a) at or from a facility could also constitute conditions which could lead to potentially more severe accidental releases. These releases may be a potential indicator that an owner or operator is not complying with RMP prevention program requirements and would benefit from a third-party audit to prevent future accidental releases.
82 Fed. Reg. 4594, 4616 (Jan. 13, 2017)

Of concern, a smaller incident that “could lead to a larger accidental release of a regulated substance” sounds eerily similar to a “near miss.” Whereas a “near miss” would result in an incident investigation, there is no discussion in the preamble that a “near miss,” should result in a third-party audit.

Third party audit findings: The new rule vastly expanded the “implementation” requirements formally located at §68.79(d) with a new paragraph (f). Effectively the term “promptly determined” has been replaced with a 90 day maximum period. Further, in addition to a certification by the third party auditor, a separate certification is required by a senior corporate official that that a compliant audit was performed and that deficiencies have been, or are in the process of being corrected according to a schedule. Although similar to a Title V certification, the corporate official audit certification cannot be delegated to a responsible official. The audit report, responses to findings, certifications, and schedule must be submitted to the audit committee of the Board of Directors.

Next week we will examine inherently safer technology.

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[1] The agency preliminary determination must provide written notice describing the basis for the notice. The process includes an opportunity for the owner to provide additional information to the agency prior to a final determination. The final determination is appealable to the EPA Regional Administrator.

chem

By Lee Vail, Ph.D., J.D.

On March 14, 2016, Environmental Protection Agency (“EPA”) proposed changes to the Risk Management Plan Program (“RMP”) Rule.  On January 13, 2017, the EPA published a new final rule.  This a second in a planned series that will address five major changes:  root cause analysis for near misses, third-party audits, inherently safer technology, emergency response, and availability of information.  The third party audit provisions are so significant that I must split it up into two topics, starting with privilege.

The proposed rule contained several provisions that reminded me of the poster hung for all to see in George Orwell’s 1984:  Big Brother Is Watching You.  Promulgation of the proposal would have resulted in submission of potentially flawed draft reports prepared by individuals with no prior knowledge of the facility that would end up in the regulating agency’s hands no later than the facilities; draft reports had to be retained.  For some reason, the EPA believed it was necessary to receive raw, unfiltered, and potentially incorrect conclusions.  Fortunately, all of this was dropped.  Interestingly, and to the alarm of many, the EPA also proposed to add:

The audit report and related records shall not be privileged as attorney-client communications or attorney work products, even if written for or reviewed by legal staff.  81 FR, 13638, 13707 (Mar 14, 2016)

In the final rule, the EPA deleted this provision limiting attorney-client privilege.  Ultimately, the EPA dropped this provision as they:

recognizes that the ultimate decision maker on questions of evidentiary privileges are the courts. Therefore, this rule does not contain a specific regulatory provision prohibiting assertion of these privileges.  81 Fed. Reg. at 4614.

I expect that the EPA did not remove the provision because they found public comments persuasive.  Ultimately they probably received good counsel that inclusion of the provision would have help naysayers strike down the rule. The EPA added, in no uncertain terms how they feel above screening internal deliberations based on privilege:

With regard to information that arguably should be protected under evidentiary privileges, EPA’s view is that the third-party audit reports and related records under this rule, like other documents prepared pursuant to part 68 requirements, such as process safety information, PHAs, operating procedures and others, are not documents produced in anticipation of litigation. With respect to the attorney-client communication privilege specifically, the third-party auditor is arms-length and independent of the stationary source being audited. The auditor lacks an attorney-client relationship with counsel for the audited entity. Therefore, in EPA’s view, neither the audit report nor the records related to the audit report provided by the third-party auditor are attorney-client privileged (including documents originally prepared with assistance or under the direction of the audited source’s attorney).  Id.

Given our litigious society, I would always consider conducting an incident investigation under attorney-client privilege.  I see no reason not to conduct future audits under privilege, but there is no certainty that a court would uphold the privilege (is there ever?).  The EPA reminds us in footnote #32 that they have authority to demand records under Section 114 of the CAA.  If maintaining control of a draft report is important to you (which it should), make sure you have and follow a retention policy that requires destruction of all draft reports.  Make sure to keep the support for the final report.  Contracts with third parties should include the return of all information, materials and drafts.

Next week:  the rest on third-party audits!

Man's Hands Signing Document --- Image by © Royalty-Free/Corbis

By Scott Huffstetler

Today, the United States Supreme Court decided to consider three decisions involving class-action waivers in employee arbitration agreements.  As background, many employers require employees to sign arbitration agreements.  In these agreements, employees give up the right to sue their employer and agree that all employment related claims will be subject to arbitration.  Many of these agreements contain class-action waivers, in which employees will agree only to bring employment related claims against the employer individually.  Essentially, by signing these agreements, employees waive their right to start or join class or collective actions.  These waivers are particularly important given the recent increase in class or collective employment suits brought against employers under the Fair Labor Standards Act (FLSA) and anti-discrimination laws.  These suits can be very costly and frustrating for employers.  The federal Fifth Circuit, which is the appeals court for federal courts in Louisiana, Mississippi, and Texas, upheld such a class-action waiver in NLRB v. Murphy Oil.  However, in two separate cases, the Seventh and Ninth Circuits, which are the appeals courts for federal courts in Illinois, Indiana, Wisconsin, Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington, held that such waivers violate the National Labor Relations Act’s (NLRA) protection of concerted activity.  The inconsistent law in this area has been troubling for employers with arbitration agreements, especially those operating in multiple jurisdictions.  Hopefully, the Supreme Court’s decision will provide needed clarity for employers who opt to have these agreements.

 

The United States Environmental Protection Agency in Washington DC. (Photo by: Loop Images/UIG via Getty Images)

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

On March 14, 2016, Environmental Protection Agency (“EPA”) proposed changes to the Risk Management Plan Program (“RMP”) Rule. On December 21, 2016, the EPA disclosed its changes via a Pre-Publication Copy.  A series of blogs are planned to address five major changes: root cause analysis for near misses, third-party audits, inherently safer technology, emergency response, and availability of information. This blog addresses the first revision: root cause analysis for near misses.

The actual language of the incident investigation requirement has not changed significantly as a facility always was required to “investigate each incident which resulted in, or could have resulted in a catastrophic release of a regulated compound.” 40 CFR 68.81(a). The revised rule basically says the same thing except that it describes the concept “could have resulted in a catastrophic release” by relating said comment to an undefined term: “near misses.”[1] Citing its own 1996 response to comments, according to the EPA, “the range of incidents that reasonably could have resulted in a catastrophic release is very broad and cannot be specifically defined.” The EPA declined to add a definition in this rule making. So what is a near miss?

EPA appears to rely on a vague Center for Chemical Process Safety (“CCPS”) definition that describes a near miss in terms of an event that could have resulted in catastrophic release “if circumstances had been slightly different.” With this as a starting place, the EPA provided several examples of near misses:

  • a runaway reaction that is brought under control by operators is a near miss that may need to be investigated to determine why the problem occurred, even if it does not directly involve a covered process because it may have led to a release from a nearby covered process or because it may indicate a safety management failure that applies to a covered process at the facility;
  • fires and explosions near or within a covered process;
  • any unanticipated release of a regulated substance; and
  • some process upsets.[2]

If not completely clear by the examples, the EPA added that “near misses should also include incidents at nearby process or equipment outside of a regulated process if the incident had the potential to cause a catastrophic release from nearby regulated equipment.” This could result in mandatory RMP incident investigations of utility systems such as power and steam generation.

So what isn’t a “near miss?” Unfortunately, all we have from the EPA is “the intent is not to include every minor incident or leak, but to focus on serious incidents that could reasonably have resulted in a catastrophic release, although EPA acknowledges this will require subjective judgment.” Regardless of examples, the salient point is that the event could have resulted in a catastrophic release. Is that not what the original rule said? As such, lifting of a relief valve that is routed to a properly designed and operated flare would not be expected to have reasonably resulted in a catastrophic release. Some processes are inherently unstable and result in frequent “runaway reactions.” In these cases, the process design probably contains multiple layers of protection. Using a layer of protection, by itself, should be insufficient to declare a near miss.

I also question the EPA’s sole reliance on subjective judgment. “Minor releases” could be objectively defined (e.g., less than a reportable quantity). Whereas a Title V deviation may occur if a control device operates at 99% efficiency instead of the required 99.5%, such can objectively be shown not to result in a possible catastrophic release.

One thing is clear; facilities need to consider, document and follow subjective and objective criteria to define incidents that could have resulted in a catastrophic release. Examples provided by the EPA should be appropriately addressed. Ultimately it may add clarity to minimize use of the undefined term “near miss” as it is ultimately introduced in terms of an incident that could have resulted in a catastrophic release (which is nothing new).  Also clear, the new rule did anything but add clarity.

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[1] To further confuse the issue, the EPA related the undefined term to the concept using the Latin based phrase “i.e.,” which is translated as “namely” or “that is to say” and then states within the preamble, that “near miss is an example of an event that could have reasonably resulted in a catastrophic release.” Typically the Latin based term “e.g.,” is used to introduce examples. Is an event that could have reasonably resulted in a catastrophic release and example of a near miss or is that the de facto definition?

[2] The EPA further cites the CCPS concerning the investigation of process upsets to include: excursions of process parameters beyond pre-established critical control limits; activation of layers of protection such as relief valves, interlocks, rupture discs, blowdown systems, halon systems, vapor release alarms, and fixed vapor spray systems and activation of emergency shutdowns.

naloxonebottle

By Jennifer J. Thomas

Recognizing the global problem of abuse and addiction to opioids, the Louisiana Legislature and the Louisiana Board of Pharmacy have enacted legislation and regulations to provide for the prescribing, dispensing and administration of Naloxone, an opioid antagonist.

In 2014, the Louisiana Legislature passed legislation authorizing “first responders” (peace officers, firefighters, EMS practitioners) to receive a prescription for Naloxone and maintain the Naloxone in the first responder’s possession for administration to any individual who is undergoing or who is believed to be undergoing an opioid-related drug overdose. The first responder is required to complete training necessary to safely and properly administer Naloxone including: techniques on how to recognize symptoms of an opioid-related overdose; standards and procedures for the storage and administration of Naloxone; and emergency follow-up procedures. First responders are immune from civil liability, criminal prosecution or disciplinary action under any professional licensing statute as a result of the administration of the Naloxone unless personal injury results from the gross negligence or willful or wanton misconduct of the first responder administering the drug.

During the 2016 legislative session, the Louisiana Legislature expanded the use of Naloxone and other opioid antagonists by authorizing a licensed medical practitioner, either directly or by standing order, to prescribe or dispense Naloxone without having examined the individual to whom it may be administered if: (1) the practitioner provides the individual receiving and administering the Naloxone or other opioid antagonist all the training required by the Louisiana Department of Health (“LDH”) for safe and proper administration of Naloxone; and (2) the Naloxone or other opioid antagonist is prescribed or dispensed in such a manner that it shall be administered through a device approved for this purpose by the United States Food and Drug Administration. Like first responders, licensed medical practitioners are granted immunity from civil liability, criminal prosecution, or disciplinary or other adverse action under any professional licensing statute. The 2016 legislation also authorized licensed pharmacists to dispense Naloxone or other opioid antagonists that is prescribed, directly or by standing order, as provided for in the rules promulgated by the Louisiana Board of Pharmacy. A licensed pharmacist who, in good faith, dispenses Naloxone or other opioid antagonists shall not be subject to civil liability, criminal prosecution or disciplinary or other adverse under any professional licensing statute.

The Louisiana Board of Pharmacy (“LBP”) has published in the Louisiana Register Declarations of Emergency providing for standing orders for the distribution of Naloxone. The first Emergency Rule was effective August 10, 2016, but because the LBP needed additional time, it directed the reissuance of the original Emergency Rule effective December 7, 2016. The Emergency Rule provides for the issuance by a Louisiana-licensed medical practitioner of a nonpatient-specific standing order for the facilitated distribution of Naloxone or other opioid antagonists. The standing order shall expire one year after the date of issuance. A Louisiana-licensed pharmacist may distribute Naloxone or other opioid antagonist according to the terms of the standing order until the one-year expiration of the standing order. Before Naloxone or other opioid antagonist drug product can be released to the recipient, the pharmacist shall verify the recipient’s knowledge and understanding of the proper use of the drug product including: (1) techniques on how to recognize signs of opioid-related drug overdose; (2) standards and procedures for the storage and administration of the drug product; and (3) emergency follow-up procedure including the requirement to summon emergency services either immediately before or immediately after administrating the drug product to the individual experiencing the overdose. The pharmacist is required to attach a copy of the standing order to the invoice or other record of sale or distribution of Naloxone or other opioid antagonist and shall store the transaction documents with the other distribution records in the pharmacy.

LDH has promulgated the Final Rule setting forth the best practice training requirements by licensed medical practitioners. Training includes: signs of overdose; signs of overmedication; instructions for storage and administration; and referral to the Substance Abuse and Mental Health Services Administration’s (“SAMHSA”) opioid overdose toolkit. Licensed medical practitioners shall instruct persons administering the opioid antagonist to immediately call 9-1-1 for medical assistance. Once the person is stable by emergency medical services, the treating practitioner is required to refer the patient to substance use treatment services. In the Final Rule, LDH strongly encourages prescribers to co-prescribe Naloxone or another opioid antagonists once in a given year to persons receiving opioid therapy for greater than 14 days.

The promulgation of the legislation and regulations increasing access to potentially life-saving medication will hopefully reduce the number of deaths resulting from opioid overdose in Louisiana.