PFAS Update: EPA Begins Process of Developing Drinking Water Limits for PFOS and PFOA

Posted in Emerging Contaminants, Environment, EPA, GT Alert, Natural Resources, PFAS, PFOA, PFOS, public health, Regulatory, Safe Drinking Water Act, Water

On Feb. 20, 2020, roughly one year after announcing its comprehensive per- and polyfluoroalkyl substances (PFAS) action plan, the Environmental Protection Agency (EPA) issued a preliminary regulatory determination under the Safe Drinking Water Act (SDWA) for the two most-studied of the chemicals, perfluorooctane sulfonate (PFOS) and perfluorooctanoic acid (PFOA). This is the initial step in the process of promulgating a National Primary Drinking Water Regulation and imposing an enforceable “maximum contaminant level” (MCL) for the substances – just two of the more than 7,000 so-called “forever chemicals” that are under intense scrutiny from lawmakers and the public.

Read the full GT Alert, “PFAS Update: EPA Begins Process of Developing Drinking Water Limits for PFOS and PFOA.”

UK Approach to EU Negotiations Post-Brexit: Implications for Environmental Standards

Posted in Brexit, Environment, EU

On 27 February 2020, the United Kingdom (UK) government published an outline of its intended approach to the forthcoming negotiations with the European Union (EU) over the future EU/UK relationship once the Brexit transition period ends. As set out in our previous GT Alert, “UK to Formally Leave EU on Friday 31 January 2020”, while the UK formally left the EU on 31 January 2020, the terms of the UK’s departure include an 11-month transition period to allow the UK and EU to adjust to their eventual new relationship. Unless that transition period is extended by agreement with the EU, the UK’s current position – subject to EU law until 31 December 2020 and essentially a de facto member of the EU – will be replaced by a new free trade agreement in 2021, or, if agreement cannot be reached, by a future relationship on so-called ‘World Trade Organisation terms’.

Read the full GT Alert, “UK Approach to EU Negotiations Post-Brexit: Implications for Environmental Standards.”

IRS Takes First Steps to Implement Carbon Capture Tax Credit

Posted in Carbon Credits, carbon emissions, Climate Change, Energy, Environment, Legislation, Oil & Gas, Tax, Technology

On Feb. 19, 2020, the Internal Revenue Service released partial guidance on the implementation of section 45Q tax credits related to the capture and sequestration of carbon dioxide. The section 45Q tax credit was updated on Feb. 9, 2018, as part of the Bipartisan Budget Act (Pub. L. 115-123) to increase the amount of the tax credit per ton and to broaden the applicability to include “qualified carbon oxide.” The new IRS guidance is designed to assist in implementing the modified law.

The 2018 law removed the volume cap applicable to the tax credit, expanded the definition to include not just carbon dioxide but other carbon oxides such as methane, and raised the amount of the tax credit per ton. Carbon oxides captured and used for enhanced oil recovery can now receive a tax credit of up to $35 per ton, while carbon oxides deposited in secure geological storage can receive a tax credit of up to $50 per ton. Continue Reading

New York’s Accelerated Renewable Energy Growth and Community Benefit Act Sends Positive Signals to Renewable Energy Developers, and Revamps Renewable Siting

Posted in Energy, Environment, Legislation, New York, Renewables, State & Local

In January 2020, in his annual budget address, New York Gov. Andrew M. Cuomo proposed a complete overhaul of renewable energy siting. In his 30-day amendments to the executive budget, he proposed the Accelerated Renewable Energy Growth and Community Benefit Act (the “Act”). The proposal would apply to large and mid-sized renewable projects, energy storage, and transmission, as well as directing the state’s agencies and public authorities to establish incentive programs to deliver shovel-ready, permitted sites to developers. The bill signals a shift in thinking about renewable energy siting, from a bureaucratic energy regulatory issue sometimes hindered by fierce local opposition, to an economic development process focused on steering the train of jobs and economic benefits anticipated from renewables over the next decade as a result of the Climate Leadership and Community Protection Act (CLCPA), while continuing to ensure all environmental requirements are met. The bill will need to be approved by the legislature during the state budget negotiations that will occur over the next month.

The Act, weighing in at roughly 40 pages, would consolidate the environmental review and permitting of renewable projects of 25 MW and above, while allowing projects of 10 MW up to 25 MW to opt into the new process. The Act would also provide fast-track siting for co-located energy storage, as well as require regulators to expedite certain transmission projects. The Act would establish a new Office of Renewable Siting within the Department of Economic Development (DED), the state agency arm of the Empire State Development Corporation (ESD). The newly created Office of Renewable Siting would create a permitting system and set uniform standards for siting and construction. It would provide a one-stop shop for environmental review and permitting of covered renewable energy projects, operating under statutory time constraints. Renewable energy projects currently moving through the existing Article 10 siting process would be allowed to opt into the new siting process, which is designed to ensure a determination within the Act’s timeframe. Continue Reading

Pennsylvania Supreme Court Clarifies Application of Fair Share Act to Strict Liability Asbestos Claims

Posted in Court Cases, Litigation, Pennsylvania

In 2011, The Fair Share Act, 42 Pa. C.S.A. § 7402, became law. The Fair Share Act changed the law of joint and several liability for actions sounding in negligence, eliminating joint and several liability except under certain exceptions. Under the Act, “a defendant’s liability shall be several and not joint, and the court shall enter a separate and several judgment in favor of the plaintiff and against each defendant for the apportioned amount of that defendant’s liability.” 42 Pa. C.S. § 7102(a.1). Each defendant is liable for its own proportion of the total dollar amount awarded as damages. Id. The Fair Share Act, which in some cases may prevent a defendant from obtaining a full recovery, was intended to prevent lawsuits targeting deep-pocket defendants. As Governor Corbett said at the time, “Tort reform legislation ensures that a party’s level of financial responsibility is assessed in a fair and equitable manner, rather than based on its financial assets.” 

This week, in Roverano v. John Crane, the Pennsylvania Supreme Court addressed whether the Fair Share Act required apportionment of liability in strict liability cases. In 2014, William Roverano brought a strict liability lawsuit against multiple defendants, claiming that exposure to their asbestos-containing products caused his lung cancer. The trial court ruled that, because asbestos exposure from individual products could not be quantified, it would apportion liability on a per capita basis. Following a jury award of over $5 million, the trial court apportioned the judgment equally among the defendants.

On appeal, the Superior Court held that the Fair Share Act applies to strict liability asbestos cases. As such, the court remanded the case for a new trial on damages, with instructions for the jury to apportion liability to each defendant on a percentage basis rather than on a per capita basis. Roverano filed a petition for allowance of appeal, which the Supreme Court granted, to consider whether the Fair Share Act requires the jury to apportion liability on a percentage basis in strict liability cases.

The Supreme Court reversed, holding that the Fair Share Act’s “plain language is consistent with per capita apportionment in asbestos cases, the Act does not specifically preempt Pennsylvania common law favoring per capita apportionment, and percentage apportionment in asbestos cases is impossible of execution.” The Supreme Court explained that, because strict liability is “’liability without fault,’ and each defendant is ‘wholly liable’ for the harm, … ‘it is improper to introduce concepts of fault in the damage-apportionment process.” Because the Fair Share Act does not explicitly preempt that common law holding—and because the Superior Court’s interpretation would be “impossible of execution” in strict liability asbestos cases—the Supreme Court reversed the Superior Court.

You can read the Supreme Court’s opinion here.

Fourth Circuit Rejects Statute of Limitations Challenge to FERC Electricity Market Manipulation Suit

Posted in Court Cases, Energy, Federal, FERC, Litigation, Pennsylvania, Regulatory

On Feb. 11, 2020, the United States Court of Appeals for the Fourth Circuit decided that the Federal Energy Regulatory Commission (FERC) did not overstep the statute of limitations in its effort to impose more than $29 million in civil penalties over alleged wholesale electricity market manipulation carried out by Dr. Houlian Chen and other associated financial entities, including Pennsylvania-based hedge fund Powhatan Energy Fund LLC.

Read the full GT Alert, “Fourth Circuit Rejects Statute of Limitations Challenge to FERC Electricity Market Manipulation Suit.”

* Special thanks to Pablo Ortiz Mena for his valuable assistance in preparing this GT Alert.

The Superfund Contribution Mind Pretzel…or One of Them

Posted in Articles, Pennsylvania, Superfund

From the first days of Superfund litigation, lawyers and courts have complained that Congress did not distinguish itself when drafting the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), 42 U.S.C. Sections 9601-75. As the law has developed, court decisions have created additional problems. The interplay among the private cost recovery provision of Section 107(a)(1-4)(B) and the contribution provisions of Section 113(f)— all informed by the statute of limitations of Section 113(g)—have created a very substantial, practical settlement problem. But the problem is a little obscure, a bit of a mind pretzel.

I discuss this complexity in my column for the Legal Intelligencer supplement, Pa. Law Weekly titled “The Superfund Contribution Mind Pretzel…or One of Them,” 43 Pa. L. Weekly 6 (Feb. 11, 2020). Read the full column.

New York’s ‘Toxic Toys’ Law: Governor Signs Legislation Regulating Chemicals in Children’s Products, But Changes to the Law Are Already Coming

Posted in Contamination, GT Alert, New York, State & Local, Toxic Tort

On Feb. 7, New York Governor Andrew M. Cuomo signed legislation regulating the presence of toxic chemicals in children’s products and apparel. The governor agreed to the legislation – the last of the bills from the 2019 legislative session to be signed – on the condition that the bills be amended in the current 2020 legislative session. Not uncommon in bills that have budgetary, substantive, or other technical flaws, the handshake agreement between the legislature and the governor to amend a bill later in the legislative session allows the executive branch to negotiate fixes to a bill without vetoing it, signaling an agreement on the general intent of legislation while recognizing the need for revisions. On Feb. 10, the legislature introduced the agreed-upon bill. Although the bill removes some flaws in the legislation, manufacturers, importers, and retailers of children’s products and apparel should closely monitor both the legislative developments as well as the regulatory and administrative proceedings that will play out over the next several years in light of this new law.

Click here to read the full GT Alert, “New York’s ‘Toxic Toys’ Law: Governor Signs Legislation Regulating Chemicals in Children’s Products, But Changes to the Law Are Already Coming.”

Coronavirus and the Occupational Safety and Health Act: What Employers Need to Know

Posted in OSHA

As the novel coronavirus (Coronavirus) continues to spread in China and around the world, employers may want to consider steps to take in addressing the Coronavirus in the workplace. The Occupational Safety and Health Administration (OSHA) recently published a webpage that provides workers and employers with interim guidance and resources for preventing exposure to the Coronavirus. See the OSHA 2019 Novel Coronavirus webpage.

Because few cases have been reported in the United States, the first question employers should consider is whether they have a duty to take any measures to prevent or reduce the likelihood of employee exposure to the Coronavirus. That is, do their employees have any risk of exposure? Unfortunately for employers, the short answer is: It depends. (We recognize that non-lawyers despise this answer, but in this case, it’s true!) If an employer has no basis to believe that its employees are at risk of exposure to the Coronavirus, then the Occupational Safety and Health Act (the Act), does not impose any affirmative duties on an employer to engage in abatement or prevention efforts.

Read the full GT Alert.

OSHA Is Raising Its Maximum Penalty Amounts, Again!

Posted in Federal, GT Alert, OSHA

On Jan. 10, 2020, the U.S. Occupational Safety and Health Administration (OSHA) announced another increase in the maximum civil monetary penalties for violations of federal Occupational Safety and Health standards and regulations. The new monetary penalties will be nearly 2% higher than the current maximum penalty amounts.

Effective Jan. 15, 2020, the maximum penalty for “Willful” or “Repeated” violations is $134,937, a more than $2,000 increase from the 2019 maximum for the same kinds of violations. The maximum penalty for “Failure to Abate” violations is $13,494 per day after the abatement date. Finally, the maximum penalty allowed for “Serious,” “Other-Than-Serious,” and “Posting Requirements” violations is $13,494, an increase of over $200 from the 2019 maximum amounts. Importantly, states that operate their own Occupational Safety and Health plans are required to adopt maximum penalties levels that are at least as effective as federal OSHA’s.

Click here to read the full GT Alert.