On April 28, 2011, Governor Bobby Jindal declared a State of Emergency as a result of growing concern over the predicted crest of the Mississippi River well above flood stage in many areas. Consistent with his authority, on May 13, 2011, James Welsh, Commissioner of Conservation, also issued an emergency and administrative order. It is expected that substantial flooding in the state will likely lead to adverse effects on many oilfield sites which could result in serious threats to public safety and the environment. The order specifically applies to following throughout the state:

  • Oilfield sites – including injection wells
  • Other facilities – including commercial E&P waste disposal and transfer stations
  • Structures and Pipelines

Ordered actions are both general calls for alert monitoring of the situation and a more specific list of necessary steps (as appropriate). The Order contains a practical, common sense mandate, to keep track of forthcoming proclamations, orders, warnings, predictions, forecasts, directives or other communications from federal, state and local authorities and to monitor water levels and weather activity. Additionally, the order requires operators to take all necessary steps and perform all necessary actions to avoid damage to the environment or threats to life or safety, including the following, where appropriate:

  • Empty petroleum tanks and re-fill with water
  • Remove chemicals from sites
  • Remove or secure loose items
  • Ensure that storm chokes or downhole plugs are installed in wells
  • Empty active pits of E&P waste
  • Shut in and secure wells where necessary
  • Protect sites from stray debris

The above list of actions is discretionary, tasking each operator with the duty to determine which actions are necessary as each operator is in the best position to assess the potential risks and dangers.

The Order also requires notification to the Office of Conservation within 12 hours should an operator shut down one of the covered facilities. The Order will extend for 120 days, unless modified or extended. The order may be found here.

On March 21, 2011, a final rule title “Identification of Non-Hazardous Secondary Material That Are Solid Waste” was published in the Federal Register. See, 76 Fed. Reg. 15456. The final rule does not as much identify that which is a solid waste as it identifies materials that are not solid waste. The effect of the rule is to determine whether combustion units should be regulated under Section 129 or Section 112 of the Clean Air Act (CAA) – solid waste is regulated under Section129 and non-solid waste under Section112. See, 76 Fed. Reg. 15610.

Under current regulations, certain materials (spent, sludges, by-products, specific chemical products and scrap) are solid waste when burned for energy recovery. See, 40 C.F.R. §261.2(c)(2). Materials are not solid waste when recycled through use or reuse as ingredients, as substitute products, or returned to the original process. See, 40 C.F.R. §261(e). The preamble of the final rule expands recycling by indicating that it includes burning for energy recovery. See, 76 Fed. Reg. 15468-69.
Continue Reading EPA Clarifies Solid Waste Materials

In accordance with the Patient Protection and Affordable Care Act, the Secretary of the United States Department of Health and Human Services (the “Department”) issued its report to Congress on the National Strategy for Quality Improvement in Health Care on March 21, 2011 (“National Quality Strategy”). The Department will use the National Quality Strategy to develop programs, regulations, new initiatives, and tools for evaluating the Federal health care efforts.

The National Quality Strategy is based on three (3) broad national aims:

  1. Better care by making healthcare more patient-centered, reliable, accessible, and safe;
  2. Healthy people/healthy communities by improving the health of the U. S. population with supportive proven interventions to address behavior, social, and environmental determinants of health in addition to delivering higher-quality care;
  3. Affordable care by reducing the cost of quality healthcare for individuals, families, employers, and government.

Continue Reading U.S. Department of Health and Human Services Issues Report to Congress on National Strategy for Quality Improvement in Health Care

On April 7, 2011, the U.S. Court of Appeals for the District of Columbia issued a per curiam opinion denying petitioners’ motion to stay EPA from implementing the new 75 ppb 1-hour sulfur dioxide (SO2) National Ambient Air Quality Standard. Nat’l Env. Development Assn. Clean Air Project v. EPA, No. 10-1252, (D.C. Cir., Apr. 7, 2011). That standard was published by EPA at 75 Fed.Reg. 35520 (June 22, 2010). A number of industrial parties and two states – Texas and North Dakota – challenged the standard by filing petitions for reconsideration with EPA and petitions for judicial review with the D.C. Circuit. The Louisiana Department of Environmental Quality (LDEQ) intervened in the case to challenge the standard while the American Lung Association and the Environmental Defense Fund intervened to support the standard. In January 2011, EPA denied the petitions for reconsideration, clearing the way for the court litigation to move forward. Some of the parties sought a stay of implementation of the new rule until there is a final decision on the merits. The D.C. Circuit opinion on April 7, 2011, indicated that petitioners did not meet the stringent burden of staying EPA’s implementation of the standard while the litigation progresses. The per curiam opinion did not address the merits of the case. The court ordered the parties to submit a proposal for a briefing schedule by May 12, 2011. It is likely that oral argument will not be held until the last quarter 2011 or first quarter 2012.

This result means that states must complete their recommendations for designations of nonattainment, attainment and unclassifiable areas by June 2, 2011 and EPA must take final action on those designation recommendations by June 2, 2012. It is anticipated that two Louisiana parishes will be proposed for nonattainment classification – West Baton Rouge and St. Bernard. LDEQ must submit to EPA revisions to its State Implementation Plan to address requirements for sources in attainment and unclassifiable parishes by June 2, 2013 and must submit revisions to its SIP by February 2014 (18 mos. from EPA nonattainment designation) to address sources in nonattainment parishes to bring them into attainment by August 2017 (5 yrs. from EPA nonattainment designation). The denial of the stay also means that certain new source review requirements, including Prevention of Significant Deterioration NAAQS compliance demonstrations for new sources and major modifications, remain applicable as of the effective date of the rule (August 23, 2010).

The United States Court of Appeals for the Fifth Circuit in U.S. v. Isiwele, No. 10-4037 (5th Cir. 3/7/2011) considered an appeal in a Medicare/Medicaid fraud case where the defendant was convicted of multiple counts of healthcare fraud and conspiracy to pay kick-backs in connection with a scheme to fraudulently bill Medicare and Medicaid for power wheelchairs. Some of the issues on appeal were whether the District Court correctly applied the “loss amount,” “mass marketing,” and “abuse of trust” enhancements for sentencing.

The defendant was a Medicare/Medicaid durable medical equipment provider who allegedly used a recruiter to go into elderly and low income communities to gather billing information from beneficiaries after Hurricane Katrina. The defendant was tried and found guilty on 16 counts of healthcare fraud and one count of conspiracy to pay illegal remunerations in violation of 18 U.S.C. §1347 and 42 U.S.C. §1320a-7b(b)(2)(A). For sentencing, the District Court applied a 14-level increase to the defendant’s base offense level on the basis of the “loss amount” occasioned by the fraud. The loss amount was calculated according to the amount billed to Medicare and Medicaid. However, the defendant argued on appeal that the proper “loss amount” was the total amount of payment for the wheelchairs by Medicare and Medicaid. The District Court also applied a 2-level increase to the offense level for the use of “mass marketing” and another 2-level increase for an “abuse of trust” based on the defendant’s status as a DME supplier for Medicare and Medicaid. The District Court sentenced the defendant to 97 months imprisonment and 3 years of supervised release and was ordered to pay a $1,700.00 special assessment and restitution in the amount of $201,397.34.

Continue Reading The U.S. Fifth Circuit Court of Appeals Adopts Standards for Healthcare Fraud Sentencing

The United States Supreme Court on March 21, 2011 denied a writ application by a physician who was appealing the lower Federal court’s decision dismissing the physician’s civil rights action against the University of Illinois where the physician alleged numerous violations of his constitutional rights. See Abcarian v. McDonald, 617 F.3d 931 (7th Cir. 2010), writ denied, No. 10-913 (2011). The physician had been the head of the Department of Surgery at the University when he was notified that a lawsuit was being contemplated against him due to the death of a former patient. The physician alleged that when the University learned of the potential lawsuit it conspired with other defendants to discredit the physician’s reputation and executed a settlement agreement with the deceased’s family. The physician further alleged that the settlement agreement was a step in a conspiracy to destroy his reputation because the settlement agreement was entered merely so the defendants could report the settlement of the medical malpractice claim to the Illinois Department of Financial and Professional Regulation and the National Practitioner Databank. The physician filed suit alleging free speech, equal protection and procedural due process claims against the defendants.

Continue Reading Court Says No Violation of Physician’s Constitutional Rights When Hospital Settles Medical Malpractice Case

On March 31, 2011, the Centers for Medicare & Medicaid Services (CMS) and other Federal agencies issued long anticipated proposed regulations addressing legal issues and other requirements for Accountable Care Organizations (ACOs) participating in the Medicare Shared Savings Program created last year by the health care reform legislation.

The following proposed regulations and documents were issued on March 31, 2011:

Centers for Medicare & Medicaid Services (CMS)

CMS issued a proposed rule that would implement Section 3022 of the Affordable Care Act related to Medicare payments to providers of services and suppliers participating in Accountable Care Organizations (ACOs) under the Medicare Shared Savings Program. Under the provisions in Section 3022 for ACOs, providers of services and suppliers can continue to receive traditional Medicare fee-for-service payments under Part A and B, and be eligible for additional payments based on meeting specified quality and savings requirements.

The CMS proposed rule for ACOs is available online at the CMS web site here. 

Continue Reading CMS and Other Federal Agencies Issue Proposed Regulations Regarding Accountable Care Organizations

In a press release from Thursday, March 24, 2011, the EEOC announced the  approval of the final regulations for the ADA Amendments Act.  The final regulations were published on Friday, March 25, 2011, in the Federal Register.  The release of the long-awaited regulations did not raise the same level of fanfare as the iPad 2.  Nor did it provoke as much as excitement as that exhibited by Steve Martin in the 1979 comedy “The Jerk” where he wildly exclaimed: “The new phone book is here!  The new phone book is here!”  But the ADAAA regulations have finally arrived, and the regulations are important and provide employers and attorneys with guidance on the ADAAA.  The ADAAA was enacted on September 25, 2008, and became effective January 1, 2009.  The Act directed the EEOC to amend the prior regulations to reflect the changes made by the ADAAA.  After much analysis and comment, the final regulations have been approved.  The new regulations can be found here.

The Louisiana Department of Environmental Quality (“LDEQ”) announced a final rule change, effective April 11, 2011, that deletes an exemption from water discharge permitting for pesticides applied directly or near waters of the state(1).  The exemption, based on an identical exemption promulgated by the EPA under the NPDES program, allowed the use of pesticides in such locations if applied “in compliance with relevant requirements of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA).”(2)  See, 40 C.F.R 122.3(h) and LAC 33:IX.2315.A.8.  However, the federal exemption from permit requirements was later held invalid and vacated by the U.S. Court of Appeals for the Sixth Circuit in National Cotton Council of Am. v. U.S. EPA, 533 F.3d 927 (6th Cir. 2009), cert. denied, 130 S.Ct. 1505 (2010).

The Sixth Circuit noted that prior to incorporating the exemption into federal regulation, “[t]he State of Washington had issued a general permit to allow the application of all aquatic pesticides in the State” allowing users of aquatic pesticides to “discharge those pesticides covered by the rule without obtaining a permit.” (3)   Further the court stated that “[o]nce the EPA or a state agency issues such a [general] permit, covered entities, in some cases, need take no further action to achieve compliance with NPDES besides adhering to the permit conditions.”(4)  In its Louisiana Register notification, LDEQ indicated that the Sixth Circuit decision compelled it to remove the equivalent LPDES exemption, but acknowledged that, in response to deleting the exemption, it was necessary “to issue a general permit for the application of pesticides.” (5)

In January 2011, the LDEQ published a draft general LPDES permit for pesticide application to fulfill this purpose and invited public comment (which ended on February 16, 2011). (6)  The draft general permit authorizes dischargers to discharge pesticides in accordance with four identified categories: mosquito and other flying insect pest control, aquatic weed and algae control, aquatic nuisance animal control and forest canopy pest control.  Unlike most general permits, the proposed general permit does not require submission of a Notice of Intent (NOI) for coverage; however certain record keeping requirements exist to demonstrate authorization and compliance. The draft general permit “also authorizes the discharge of storm water runoff from facilities which handle or use pesticides . . . when handled and stored according to FIFRA instructions” unless the facility “qualifies for coverage under the Multi-Sector General Permit.”  The general permit disallows the use of pesticides where they cause a violation of water quality standards or various other listed impairments; but does not require ambient water body testing by the pesticide user.  LDEQ does conduct routine ambient monitoring through its water quality assessment division.  According to the draft permit, the LDEQ “may deny coverage under the permit and require submittal of an application for an individual LPDES permit based on a person’s compliance record, ambient water quality data, or any other information relative to the application of pesticides.”

With the withdrawal of the regulatory exemption, as of April 11, 2011, discharge of pesticides into or near waters of the state without a permit will be prohibited.  Those planning to apply pesticides after that time should familiarize themselves with the details of the existing draft permit and ultimately any final general permit that may be issued by LDEQ.
****************************

(1) 37 La. Reg. 588-89 (Feb. 20, 2011).
(2)  Application of Pestcides to Waters of the United States in Compliance With FIFRA, 71 Fed. Reg. 68483 (Nov. 27, 2006).
(3)  Id. at 931.
(4)  Id. citing S. Florida Water Mgmt. Dist. V. Miccosukee Tribe of Indians, 541 U.S. 95, 108 n. *(2004)
(5)  37 La. Reg. at 589.
(6)  Public Notice, Draft of Reissuance of Water Discharge General Permit LAG870000, Discharge of Pesticides Into or Near Waters of the State, AI 169705 (Jan. 8, 2011) located at http://www.deq.louisiana.gov/apps/pubNotice/ (last visited Feb. 21, 2011).

On February 7, 2011, the NLRB and a private employer reached a settlement regarding the employer’s termination of an employee allegedly based, in part, on Facebook posts made by the employee. However, because the case had not made it through the courts, employers and employees will have to continue to wait for a definitive decision regarding the legality of disciplining an employee for his or her postings about a supervisor on a personal social media platform.

Continue Reading Settlement Reached in the NLRB Facebook Case