OSHA has just published a Final Rule restating its interpretation of the “continuing violations” theory. There are now two Circuit Court of Appeals rulings that disagree with this interpretation: AKM LLC dba Volks Contractors v. Secretary of Labor, et al. (Volks) and Delek Refining, Limited v. Occupational Safety and Health Review Commission, et al. (Delek).
On January 3, the U.S. Court of Appeals for the Tenth Circuit issued a ruling reversing the district court’s decision that Asarco could not proceed with its claims for cost recovery at a Utah Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) mining site. The case is Asarco, LLC v. Noranda Mining, Inc.
Recently Law360 published my three-part series covering 2016’s most significant environmental cases decided by the U.S. Supreme Court and federal courts. Part 1 covers the U.S. Supreme Court and federal courts sitting in the D.C., First, Second, Third and Fourth Circuits. Part 2 highlighted cases decided by the federal courts sitting in the Fifth, Sixth, Seventh, Eighth and Ninth Circuits. Part 3 covers cases decided in the Tenth and Eleventh Circuits, as well as several state supreme courts.
On December 22, the U.S. District Court for the District of Columbia issued an opinion in Water Quality Insurance Syndicate v. U.S., which reversed the Coast Guard’s National Pollution Funds Center’s (NPFC) finding of gross negligence by the captain of the MONARCH, a supply vessel that collided with an offshore oil and gas production platform in the Cook Inlet, AL. This decision may have significant implications for insurers. Continue Reading ›
On December 21, the Administrator of the Environmental Protection Agency (EPA) signed the Final Rule revising the EPA’s Chemical Accident Prevention regulations, generally known as the Risk Management Program (RMP). These rules were mandated by the 1990 Clean Air Act amendments that regulate emissions of hazardous air pollutants (42 U.S.C. § 7412), and the rules are located at 40 C.F.R. Part 68. The EPA is authorized by law to prevent and respond to the accidental release of “regulated substances” by stationary sources by promulgating appropriate regulations which recognize “differences in size, operations, processes, class and categories of sources.” EPA’s list of regulated toxic and flammable substances and their threshold quantities is located at 40 C.F.R. § 68.130. The latest revisions to the RMP rules respond to Executive Order 13650, and a number of recent serious releases of hazardous air pollutants (HAP) from HAP storage facilities.
On April 7, 2015, the U.S. Court of Appeals for the Fifth Circuit, in Gulf Restoration Network, et al., v. McCarthy, vacated and remanded a decision of the United States District Court for the Eastern District of Louisiana that granted, in part, the plaintiff environmental organizations’ complaint that the Environmental Protection Agency (EPA), by denying a petition for rulemaking and thereby failing to impose numeric water quality standards to control nitrogen and phosphorus pollution within the Mississippi River Basin and the Northern Gulf of Mexico, violated the Administrative Procedure Act. On remand, the district court has now granted EPA’s motion for summary judgment, and dismissed the Plaintiffs’ petition for rulemaking filed with EPA.
On December 13, the U.S. Court of Appeals for the Fourth Circuit decided the case of Catawba Riverkeeper Foundation, et al., v. North Carolina Department of Transportation, et al. The Fourth Circuit concluded that, “[b]ecause events beyond the parties’ control have mooted this appeal, leaving the district court’s judgment undisturbed would not serve the public interest.” Continue Reading ›
On December 13, the U.S. Court of Appeals for the Fifth Circuit decided the case of United States of America, e ex rel. Jeffrey M. Simoneaux v. E. I. duPont de Nemours & Company. Reversing the district court, the Fifth Circuit held that “potential or contingent penalties” are not obligations under the federal False Claims Act (FCA) and they are not obligations under the FCA “even when a statute requires immediate action from a violator,[because] the Government must still choose whether to impose a penalty.” Continue Reading ›
On December 12, the U.S. Court of Appeals for the Seventh Circuit issued a ruling holding that a lower court’s decision dismissing the federal government’s civil claim that the defendants were at fault in connection with a spill of clarified slurry oil had preclusive effect upon the government’s later-filed criminal enforcement case in the same matter. The case is U.S. v. Egan Marine Corporation and Dennis Michael Egan. Continue Reading ›
Below is a snapshot of the Water Infrastructure Improvements for the Nation Act 
(S. 612) passed late last week by the Congress. The President has indicated that he will sign the bill.
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