Pipeline and Hazardous Materials Safety Administration’s (PHMSA) March 16 proposed regulations for natural gas pipeline safety focuses on legacy pipe integrity. Legacy pipe is a type of pipe no longer manufactured and that PHMSA considers to have potential problems related to manufacturing imperfections. Legacy construction techniques are historic practices no longer used for construction or repair, including non-standard fittings and certain joints and couplings. PHMSA’s March 16 proposal would require enhanced inspection and integrity programs for legacy pipelines, and those in a newly created ‘moderate consequence area.’ PHMSA had already required enhanced programs for ‘high consequence areas’ – those with… Read more
Tag: pehoover
Supreme Court Upholds $5.8 Million Judgment for Employee Time to Change Into and Out of Safety Equipment
OSHA Issues Final Rule With More Stringent Silica Exposure Limit On March 24, 2016, the Occupational Health and Safety Administration (OSHA) issued a final rule, which among other things, significantly reduces the permissible exposure limit (PEL) for workers’ exposure to respirable crystalline silica from 100 micrograms per cubic meter of air (averaged over an 8-hour shift) to 50 micrograms per cubic meter. The new OSHA rule impacts a wide range of industries including construction, manufacturing, oil and gas production, and railroads. In addition to the more stringent PEL, the new rule includes monitoring, training, record-keeping, housekeeping, and other requirements for… Read more
EPA Increases Oversight of Drinking Water Program
The U.S. EPA has announced its intention to increase oversight of state drinking water programs in light of the crisis occurring in Flint, Michigan. Federal officials will meet with and work with each state agency to improve their implementation of the EPA’s existing rules aimed at controlling lead and copper in drinking water. Drinking water standards are set by the federal government pursuant to the authority of the Safe Drinking Water Act (SDWA); however, authority to implement the terms of the SDWA has been largely delegated to individual states. The U.S. EPA has set a new priority on assisting states… Read more
Authority to Implement EPA Carbon Plan Questioned
In an amicus brief filed February 23, 2016 (West Virginia v. EPA, D.C. Cir., No. 15-1363, brief filed 2/23/16), 34 Senators and 171 Representatives of the House have filed an amicus brief arguing that the U.S. EPA’s Clean Power Plan should be vacated on the basis that the Rule far exceeds the EPA’s authority under the Clean Air Act. Already, the Rule has been stayed by the U.S. Supreme Court and remanded to Appellate Judges in jurisdictions where legal challenges have been filed. The Appellate Courts have ordered expedited schedules for briefing despite motions by the petitioners for a slower… Read more
Proposed Pharmaceutical Rule Receives Concerns, Some Praise
The comment period on EPA’s proposed Management Standards for Hazardous Waste Pharmaceuticals closed on December 24. Comments on the proposed rule raised several concerns and lauded some of its provisions. The principal item criticized was the rule’s classification of pharmaceuticals in the “reverse distribution” process as waste. Healthcare facilities and retailers send unused or unsold pharmaceuticals to a central location, and receive credit from the manufacturer. Pharmaceuticals received at the location that are determined to be waste are then disposed in a manner compliant with the Resource Conservation and Recovery Act (RCRA). Comments on the proposed rule took the position… Read more
Stakeholders Assert the New Waters of The United States Rule Overreaches to Regulate Western Water Supply Ditches
Regulated parties and stakeholders assert that the rule’s definition of “tributary” is broad enough to encompass Western water supply and irrigation ditches. The final rule states that “ditches are one important example of constructed features that in many instances can meet the definition of tributary.” Opponents of the rule state that the regulation means many water supply structures that are essential to beneficial water use in the West will be jurisdictional and subject to permitting requirements. Opponents believe the regulation of these ditches represents a flawed understanding of the purpose and function of Western water supply ditches, which are created… Read more
Eighth Circuit Reverses Summary Judgment Finding of CERCLA Arranger Liability
On December 10, the Eighth Circuit Court of Appeals, in a 2-1 decision, reversed a trial court’s summary judgment finding that Dico, Inc. had arranger liability under CERCLA for selling buildings known to contain PCB-contaminated insulation. United States v. Dico, Inc., et al, No. 14-2762 (8th Cir. 2015). The Court found that under the U.S. Supreme Court opinion in Burlington Northern and Santa Fe Railway Co. v. U.S., 129 S. Ct. 1870 (2009), the determination of intent to arrange for disposal of a hazardous substance is fact-specific, and that because there was some evidence that the buildings had some commercial… Read more
Air Toxics Rule Remains in Force While EPA Completes Cost Consideration
In a significant victory to EPA, environmental groups and clean energy companies, the D.C. Circuit Court of Appeals on December 15 remanded EPA’s Maximum Achievable Control Technology (MACT) rule for air toxics to the agency without vacating it. The remand keeps the rule in force while EPA finishes the cost analysis mandated by the U.S. Supreme Court in Michigan v. EPA (No. 14-46, June 29, 2015). Although the D.C. Circuit’s remand order noted that EPA is “on track” to complete its cost analysis by April 15, 2016, the order did not set a deadline for completion. As a result of… Read more
DC Circuit Leaves EPA Power Plant Mercury Rule in Place
A federal appeals court has opted to leave the EPA’s mercury and air toxic standards for power plants in place despite a ruling by the U.S. Supreme Court that the EPA erred in the first step of its rulemaking process. According to the opinion by the U.S. Court of Appeals for the District of Columbia, the decision means that power plants must continue to comply with the mercury rule while the EPA works to address the Supreme Court’s holding that cost was a necessary factor for the agency to consider when deciding it was necessary to regulate power plant emissions… Read more
Wetlands, Finality of Jurisdictional Determinations
On December 11, 2015, the U.S. Supreme Court agreed to review whether a Clean Water Act (CWA) jurisdictional determination issued by the U.S. Army Corps of Engineers (Corps) constitutes final agency action subject to judicial review. Previously, three federal appeals courts could not agree on whether the nonbinding, jurisdictional determination was final agency action that could be challenged in federal court under the Administrative Procedures Act (APA). While the CWA does not require the Corps to issue jurisdictional determinations, the approval of one indicates that the Corps will require the landowner to obtain a Section 404 Dredge and Fill Permit… Read more